Canadian Copyright: Moral Rights and Criminal Charges

In the autumn of 2012, Vladimir Umanets was charged and convicted of defacing a Mark Rothko painting at the Tate Modern gallery in London, England.  As described in this CBC story, and this International Business Times story, Umanets stepped over a barrier and scrawled the words “Vladimir Umanets 12 a potential piece of yellowism” with black marker in a corner of the canvas of the Rothko work entitled “Black on Maroon”.  The damage to the canvas, while isolated in terms of its scope (photographs indicate that the “signature” occupies the bottom-right corner of the painting), was apparently significant: news reports indicate that repair of the painting would take more than a year and cost hundreds of thousands of pounds.  After being convicted of “criminal damage”, Umanets was sentenced to two years imprisonment. Setting aside criminal charges arising under the Criminal Code, what sorts of copyright liability might someone who defaced a painting be subject to in Canada?

The initial, and obvious, concern would be some kind of moral rights infringement.  As Section 28.2 of the Copyright Act provides,

The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation … distorted, mutilated or otherwise modified

We can see two different elements are required for an infringement of an author’s (meaning a “creator”, in our case, a painter) right to integrity: there must have occurred (1) a distortion, mutilation or modification of the work which (2) has a prejudicial effect on the author’s honour or reputation.

Well.  What might that mean?  As David Vaver, in a rather prescient little passage from the second edition (published in 2011) of his Intellectual Property tome, notes:

“The scrawler of graffiti on a public sculpture may, on one view, be infringing the sculptor’s moral rights. On another view, he may be exercising, however crudely, rights of free speech and comment.”

(Indeed, our man Vladimir, in explaining his defacing of “Black on Maroon”, called attention to his own “yellowism” philosophy and said he marked the painting in order to “draw attention to what was going on in contemporary art” (those are the reporter’s words, not Vladimir’s).)

So how does one tell if a particular distortion/mutilation/modification of a work has a prejudicial effect on the author’s honour or reputation?  Helpfully, for certain types of works, the required prejudice is deemed to have occurred, pursuant to Section 28.2(2) of the Act:

In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

In other words, for paintings, sculptures and engravings, the distortion/mutilation/modification itself constitutes the infringement of moral rights, without the need for the artist to prove that the action has had a prejudicial effect on his or her honour or reputation. (Vaver calls the operation of Section 28.2(2) a “rebuttable presumption”, but I’m not sure how he reads that into the legislation.)

What about for other types of works?  The type of proof which an artist might be required to bring forward to prove prejudice is something of a moving target.  In the classic Canadian moral rights case of Snow v Eaton Centre (1982), 70 CPR (2d) 105, wherein sculptor Michael Snow successfully claimed infringement of his moral rights when the managers of the shopping mall in which his sculptures of ducks in flight were festooned with red ribbons to mark the Christmas season, the court indicated that the artist’s own views were to be given considerable weight so long as they were “reasonably arrived at”.  Subsequent cases (e.g., Prise de Parole Inc v Guerin, Editeur Ltee (1995), 66 CPR (3d) 257) have indicated a preference on the part of the courts for objective, expert evidence which corroborates the prejudicial effect.  (I should also note that the fact that the artist was, as in the case of Rothko, deceased, would not be a bar to a moral rights infringement claim: moral rights continue for the duration of copyright protection, so for a term of life of the author plus fifty years (Section 14.2(1) of the Copyright Act).)

It is also worth recalling, however, that the Copyright Act contains provisions which create criminal offences, and some of those can have relevance to unauthorized modifications of works.  Section 42 of the Copyright Act creates a set of criminal offences for what I’ll call “standard” infringement: things like importing and selling infringing copies of works.  Section 42(3.1) makes it a criminal offence to circumvent technological protection measures or offer services or devices which enable such circumvention.  Of interest for our purposes is Section 43 of the Copyright Act, which creates two different criminal offences:

• unauthorized public performances for private profit of dramatic works, operatic works or musical compositions can lead to a fine not exceeding $250 and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding two months or to both
• any unauthorized changing or suppression of the title, or the name of the author, of any dramatic work, operatic work or musical composition in which copyright subsists in Canada, or any unauthorized change in the work or composition, in order that the work or composition may be performed in whole or in part in public for private profit, can lead to a fine not exceeding $500 and, in the case of a second or subsequent offence, either to that fine or to imprisonment for a term not exceeding four months or to both.

So certain types of modifications (i.e., changing the name of the author or “any unauthorized change”) to certain types of works (i.e., dramatic works (such as plays or screenplays), operatic works or musical compositions) can give rise to criminal liability.  Of course, Section 43 appears to have fallen into disuse – I haven’t been able to find any reported use of it since 1912 – but you never know what enterprising rights-owner (or their counsel) might decide to make use of.