Copyright law grants creators exclusive rights over their original works, allowing them to control how these works are reproduced, adapted, displayed, and monetized. A fundamental distinction exists between physical ownership and copyright ownership. Purchasing a work (e.g., a painting or sculpture) does not transfer copyright unless specifically agreed upon in writing. Copyright provides creators with a set of economic and moral rights, designed to protect both the commercial value of their work and their personal connection to it.
Copyright is a legal framework that grants creators specific rights over their original works. Understanding copyright is essential to distinguish between physical ownership of a work and ownership of copyright in a work. Here, we explore what copyright entails and the protections it affords to creators under the Copyright Act.
Copyright is a statutory right created by the Copyright Act, which protects a creator’s work by granting specific rights to control and monetize the use of that work. It offers creators legal protections against unauthorized uses and reproductions of their work.
Copyright is a bundle of economic and moral rights. These rights protect the creator's economic interests and personal connection to the work. Copyright encompasses economic rights, allowing creators to earn income, and moral rights, which safeguard their personal and reputational connection to the work.
Physical Ownership vs. Copyright Ownership: Ownership of a physical work, such as a painting, does not automatically grant copyright. Buyers cannot reproduce, publicly display, or commercially exploit the work without permission from the copyright holder.
Section 3 of the Copyright Act provides the following exclusive rights:
This ensures creators have control over the accessibility, adaptation, and distribution of their work, with the flexibility to license or limit these rights based on their preferences.
In specific contexts, such as licences from Access Copyright, reproduction licences focus on published works (excluding music or software). This license does not extend to uses such as printing on merchandise.
Section 3 grants the copyright owner exclusive rights, including:
The creator of an original literary, dramatic, artistic, or musical work has the exclusive right to use the work and to permit others to use it through performance, exhibition, reproduction, and more.
Reproduction refers to creating copies of a work in various forms, including:
Copyright is a statutory right created by the Copyright Act. Copyright is a bundle of economic and moral rights pursuant to the Copyright Act. Section 3 of the Act provides the copyright owner with the exclusive right to produce, reproduce, perform, adapt, translate, publish, make a recording, communicate by telecommunication, and present an artistic work at an exhibition or any substantial part of a work. It also includes the right to communicate a work to the public by telecommunication and the right to rent out certain works.
The creator of an original literary, dramatic, artistic, or musical work is given the exclusive right to use and to permit others to use the work by way of performance, exhibition and reproduction.
Artistic works include artwork, illustrations, graphics, logos, maps, etc. Literary works include books, periodicals, newspapers, journals, papers, software, directories, etc.
The reproduction rights for copying published works is handled by Access Copyright, a copyright collective (and not for instance, music or computer programs). It does not license uses such as reproduction of a published work on a T-shirt or mug.
Artists and designers benefit from several rights within the Copyright Act, including reproduction, exhibition, and moral rights. These rights allow creators to retain control over the display, adaptation, and integrity of their work. Here are explanations and notable cases that illustrate each right.
1. Reproduction Rights (Section 3)
Reproduction rights allow creators to control the copying of their work in both physical and digital formats. This right preserves the exclusivity and integrity of the work's presentation.
Prints and Sculptures: An artist can create a limited number of prints or sculptures to preserve the uniqueness of their work. Unauthorized reproduction, whether digital or physical, infringes upon these rights.
Case Example (U.S.) - Andy Warhol Foundation v. Goldsmith (U.S. Supreme Court, 2023): Photographer Lynn Goldsmith challenged the licensing of a Warhol silkscreen based on her photograph of Prince. The Court held that this commercial licensing was not fair use, because it served substantially the same purpose as her photograph.
Case Example (U.S.) - Rogers v. Koons (1992): Jeff Koons made sculptures based on a photographer's image of a couple holding puppies, without permission. The court found infringement and rejected his parody and fair use defence.
2. Exhibition Right (Section 3(1)(g))
Exhibition rights allow artists to control when and where their work is displayed in public, such as galleries, museums, and other exhibition spaces.
Case Example (Canada) - Snow v. The Eaton Centre Ltd. (Ontario, 1982): The Eaton Centre tied Christmas ribbons around the necks of Michael Snow's sculpture of Canada geese. The court ordered them removed because the change prejudiced his honour and reputation. Although it concerned the display of his work, it was decided on moral rights.
Case Example (U.S.) - Cariou v. Prince (2013): Richard Prince used Patrick Cariou's photographs in his "Canal Zone" series without permission. The U.S. appeals court found most of the works were transformative fair use and sent five back for further review. Canada has no general fair use defence; it has narrower fair dealing exceptions.
3. Public Communication Right (Section 3(1)(f))
This right allows creators to control how their work is communicated digitally, such as on websites or social media, making it especially relevant in today’s digital era.
Example: A graphic designer may license a logo for use on a company’s website but restrict it from being used on social media, preserving control over its online display.
Case Example (Canada) - ESA v. SOCAN (Supreme Court of Canada, 2012): The Court held that downloading a video game containing music is not a separate "communication to the public", clarifying how the telecommunication right applies online.
4. Moral Rights (Section 14.1)
Moral rights protect the creator’s personal and reputational connection to their work, including the right to be attributed as the author and the right to prevent harmful modifications.
Moral rights cannot be sold or assigned, but an artist can waive them in whole or in part (s. 14.1(2)). Assigning the copyright does not, by itself, waive them (s. 14.1(3)). They last as long as the copyright in the work (s. 14.2(1)). Since December 30, 2022, that is generally the life of the artist plus 70 years.
Right of Attribution: This right ensures artists are credited as authors of their work, which helps maintain their professional reputation.
Right of Integrity: This right allows artists to prevent distortions, mutilations or modifications of their work that prejudice their honour or reputation. Case Example (U.S.) - Cady Noland and Log Cabin: Noland disowned a sculpture that was restored without her involvement and sued under the U.S. Visual Artists Rights Act. Her claims were dismissed, which shows the limits of integrity rights for restored works in the United States.
Case Example (U.S.) - Shepard Fairey and the Associated Press: Fairey based the Obama "Hope" poster on an AP photograph without permission. The copyright and fair use dispute settled in 2011 without a court ruling, a reminder that transformative art can still carry infringement risk.
Case Example (Canada) - Théberge v. Galerie d'Art du Petit Champlain (Supreme Court of Canada, 2002): A gallery transferred printed images of Claude Théberge's paintings from paper posters onto canvas. The Court held this was not a "reproduction" because no new copies were made, and noted that any remedy lay in moral rights rather than economic rights.
5. Economic Rights (Section 3)
Economic rights allow artists to profit from their work through licensing, distribution, and sales, giving them control over its commercial use.
Distribution Rights: These rights allow artists to control how their works are shared and distributed. For example, a novelist may license their work for publication in a specific market, preserving distribution rights elsewhere.
Resale Right (proposed in Canada): In many countries, a resale right entitles artists to a royalty each time their work is resold on the secondary market, so they share in its increase in value over time.
Example (U.S.) - California Resale Royalty Act: The Act gave California artists royalties on certain resales, but U.S. courts later held it is pre-empted by federal copyright law for sales after 1977, so it now has very limited effect.
Canada does not yet have an Artist's Resale Right in force. It would entitle visual artists to a royalty when their works are resold on the secondary market. Similar rights exist in more than 90 countries, including the European Union, the United Kingdom and Australia.
The federal government announced its intention to introduce an Artist's Resale Right in Budget 2025. Until legislation is passed and in force, artists in Canada cannot claim it. Canadian Artists' Representation (CARFAC) and the Regroupement des artistes en arts visuels du Québec (RAAV) have long advocated for it.
Supporters emphasize its potential to benefit artists, particularly Indigenous and senior artists, by letting them share in the increasing value of their works over time.
6. Literary Rights and Access Copyright
Access Copyright manages reproduction rights for literary works like books, newspapers, and magazines, providing licenses for educational and research purposes. Commercial uses, however, still require direct permission from the copyright holder.
Example: An academic institution may obtain a license from Access Copyright to copy parts of a textbook for classroom use, whereas reproducing it on merchandise requires direct permission.
Case Example (U.S.) - Campbell v. Acuff-Rose Music (U.S. Supreme Court, 1994): 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" was held capable of being fair use because of its transformative nature. In Canada, parody and satire are fair dealing purposes under section 29 of the Copyright Act.
7. Enforcement and Remedies
Copyright holders have several legal remedies to address infringements:
Injunctions: Courts can order a stop to unauthorized use or modifications. For example, Michael Snow obtained an order requiring the Eaton Centre to remove the ribbons from his sculpture.
Damages: Copyright holders can seek financial compensation, known as damages, for losses resulting from infringement. There are two primary types of damages available:
Actual Damages: These damages compensate the copyright holder for measurable financial losses due to the infringement, such as lost licensing fees, sales, or commissions. Actual damages require proof of the financial impact of the infringement.
Statutory Damages: In cases where it is challenging to quantify actual losses, courts may award statutory damages. These are pre-determined amounts set by law, allowing copyright holders to receive compensation without proving exact financial losses. Statutory damages are especially useful in digital infringement cases, where tracking losses can be complex.
Example (Canada) - Statutory damages: Under section 38.1 of the Copyright Act, a copyright owner can choose statutory damages instead of proving actual losses: from $500 to $20,000 per work for commercial infringement, and from $100 to $5,000 in total for non-commercial infringement.
Account of Profits: As well as, or instead of, claiming damages, copyright holders may request an account of profits, which allows them to recover profits that the infringer earned through the unauthorized use of their work. This remedy focuses on the infringer’s gain rather than the copyright holder’s loss.
Example (Canada) - Account of profits: Under section 35 of the Copyright Act, a copyright owner can recover both their damages and any profits the infringer made that were not taken into account in calculating those damages.
Delivery Up and Destruction: Courts can order that infringing copies be “delivered up” (surrendered) to the copyright holder or destroyed. This remedy is particularly common in cases involving counterfeit goods or unauthorized reproductions of artwork or merchandise.
Case Example (U.S.) - Louis Vuitton v. My Other Bag (2016): Louis Vuitton sued over tote bags that played on its designs. The court found the bags were a parody and ruled for My Other Bag, a reminder that remedies such as delivery up are only available where infringement is proven.
Criminal Penalties: In cases of severe infringement, such as large-scale reproduction or distribution without permission, criminal charges can be brought against the infringer. Criminal penalties may include fines and, in extreme cases, imprisonment, providing a deterrent against high-stakes copyright violations.
Example (Canada) - Criminal provisions: Section 42 of the Copyright Act makes it an offence to knowingly sell or distribute infringing copies for commercial purposes. On indictment, penalties can reach a $1,000,000 fine, five years' imprisonment, or both.