From Hugh Stephens Blog:
For a small town in British Columbia, it’s a tale of high drama and threatened lawsuits. Merritt, BC, population about 7000, is a small ranching, sawmill and tourist town situated in the Nicola Valley in the interior of the province, a 3 hour drive from Vancouver. I passed a university summer of my misspent youth there, working in the big open-pit copper mine (Craigmont) that used to be one of the mainstays of the economy. The mine is long closed and now the good citizens of Merritt use various techniques to attract visitors, such as holding an annual country music festival, (which in some years increases the population of the town some twentyfold), hosting the Canadian Country Music Hall of Fame and displaying a number of creative murals that grace various buildings around town, all tied to the country music theme. It’s a rollicking little town that has become caught up in the crossfire of a copyright controversy.
The website of Merritt’s Country Music Hall of Fame highlights the murals, all of them painted with local youth under the direction of muralist Michelle Loughery, or by Loughery herself. Loughery, who lives in Vernon, BC, in the “next valley over” (the Okanagan) has worked with youth in both Merritt and other centres to engage them in employment and trade skills training through mural work, known as the Wayfinder Project. The website of the Hall of Fame, after giving credit to Loughery, notes that
“Not only has the (Wayfinder) program served to enrich our society, but it has helped to transform Merritt into the largest country music art gallery you’ll ever visit. A visit to Merritt and you’ll find ample opportunity to pose in front of larger than life murals or your favorite country artists.”
It all sounds wonderful, but there is poison in paradise, all related to a copyright controversy. Now you might think that a copyright dispute involving the Country Music Hall of Fame might involve music, but you would be wrong. The dispute is over the murals.
The murals were painted on a number of buildings in Merritt by Loughery or by youth under her direction, over a period of several years up to 2012. The owners of the buildings were happy to contribute to a community project by allowing the paintings on the outside of their structures. As word of the murals spread, and as Merritt expanded its ambitions to become a tourist hub for country music fans, last year Merritt’s Music Hall of Fame, a partner museum with the Canadian Country Music Association, decided to have the murals appraised. According to press reports, the purpose was to place a value on the murals, in order to make it easier for the Association, which operates the Hall of Fame and its associated “Walk of Stars” (a tour of the murals and handprints in town) to apply for corporate or government funding. Appraisal is usually part of insuring something of value, a relevant consideration since probably the most famous of the murals, one of Elvis Presley painted by Loughery in 2007 (for which she secured permission from Elvis Presley Enterprises in order to reproduce the likeness), was inextricably half painted over last year by the new owners of the building on which it was affixed (the Desert Inn) much to the consternation of Loughery and the Hall of Fame.
While the Hall of Fame’s move to establish a value for the murals is understandable, a complication is that it doesn’t appear to hold the rights to them. Normally the value of a work would come from its potential re-sale value, but it is hard to imagine a work of art on a building owned by someone else having much value. Another form of value inherent in the work would be licensing fees for reproduction, and ownership of these reproduction rights appears to be the nub of the issue. When Loughery painted the murals, she did so in partnership with another non-profit, the Merritt Walk of Stars Society, which folded in 2012. Both she and the Society raised funds for the project, but Loughery was the artist of all the murals. In the case of the Elvis mural, her © 2007 is clearly marked on the work. From her perspective she was not commissioned to do the work, and even if she was, under Canadian law the copyright rests with her unless she licensed it to another entity, which she has not. As one noted law firm has described it;
“Unlike the U.S. Act, the concept of “work made for hire” does not exist in Canadian law. As a general rule, the authorship of a work made pursuant to a contract remains with the employee or contractor, even where the ownership is held by the employer. This is contrasted to the law in the U.S. where the author and owner of a work made for hire is the employer (often a corporation).”
. . . .
[I]t seems to me that it is pretty much a slam-dunk for Loughery when it comes to the copyright. She holds the rights to the murals and can control their reproduction and use even if they are painted on the walls of buildings belonging to someone else. Maybe the Society “owns” them–as an art collector might own a work of art–but the right to license or reproduce the murals surely still rests with the artist.
. . . .
I would add that to Loughery this is an important moral (and potentially legal) issue as the stars generously provided their images to her for the murals under the condition that there would be no assignment to third parties or economic gain. She feels it is her responsibility to protect that personal commitment, and is one of the reasons she has avoided monetization of the murals.
Link to the rest at Hugh Stephens Blog
PG says the takeaway for those encouraging or permitting artists to paint murals on the walls of buildings that are not owned by the artist is to forbid any artist from painting anything and call the police/sheriff/Mounties to arrest the artist for trespassing the first time the artist steps onto the property or touches a paintbrush to a wall of a building resting on the property. The cautious property-owner may wish to install razor wire and buy or rent a pack of Dobermans to patrol the wall.
Such preventative measures should continue until the property owner acquires competent intellectual property counsel and consults with her/him/them. In all likelihood, the muralist and whoever is paying/encouraging/licensing rights to the muralist will be required to sign a well-drafted contract acknowledging that the property owner is the sole owner of the mural and is authorized to do anything he/she/it wishes with the resulting artwork, including, without limitation, painting or pasting on the building a billboard advertising Levi Garrett chewing tobacco that obscures some or all of the mural at any time in the future.
PG acknowledges that, instead of lawyers, it might be cheaper to just keep the Dobermans in place for a few generations. Perhaps a colony of copperheads could be substituted at some time in the future since they’re a bit less expensive to maintain.
And, yes, Amazon does sell razor wire and a variety of warning signs.
I wonder. All those famous Italian artists who painted their masterpieces inside Renaissance churches – you know Michelangelo and others – they didn’t own the paintings, did they? The churches did. Or am I wrong?
I think the churches did and do own the paintings, Olga, but copyright law has changed a bit between then and now.
The churches commissioned the work.
Ergo, work for hire.
If you hire a decorator to redecorate, you own the house and furnishings, not the decorator. At most, they get to photograph the place for tbeir portfolio.
Mural painters = decorators. 😉
But the Artist raised money in conjunction with a nonprofit organization that is no longer in operation. It wasn’t even a traditional work for hire gig. If the owners of the buildings did not have a contract for partial ownership of murals when they were fresh painted then ownership and control would fall to the artist.
That’s the OP case.
But it doesn’t even matter because as stated Canada doesn’t allow for work for hire. No sense paying for mural and losing control of the property.
I wish I knew somebody named Doberman, so I could give him that sign.
Or, just give the local kids some paint bombs…
I remember the New York subway once had a crew of painters at the end of the line. They would paint over the graffiti that had just been painted as the train went through the city. By the time it returned to where the artist was working, his work was painted over.