Hugh Stephens, Distinguished Fellow, Asia Pacific Foundation of Canada, Vice Chair, Canadian Committee on Pacific Economic Cooperation (PECC)
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).”
There is now a dispute between Loughery and the newly formed society, the Canadian Country Music Heritage Society (CCMHS), the successor to the Walk of Fame Society, over who owns the rights in the murals, with each side getting legal advice. The CCMHS wants to “manage” the murals and license them as the Town of Merritt seeks to have new murals done to add to the collection. As I have said many times in this blog, I am not a lawyer and not qualified to offer legal advice, (and I am not about to start now) but it 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. This seems to have been confirmed by Martha Rans, legal director of Artists Legal Outreach in Vancouver, according to a recent press report. I invite the IP lawyers among my readership to correct me if I am wrong.
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.
The location of the murals adds an interesting wrinkle. There is a famous case in the US where the owner of several derelict buildings in New York that were adorned with unauthorized street art decided to paint over the art and tear down the walls on which some of the art was painted. The building owner was sued by a group of 21 artists who were awarded $6.7 million in damages under US legislation known as the Visual Artists Rights Act of 1990, even though the demolition permit for the buildings was perfectly legal. The fact that the owner of the building took matters into his own hands despite an injunction preventing destruction of the art did not help his case, but this demonstrates the complexity of issues involving the moral and economic rights inherent in copyrighted works.
I am not aware of an equivalent law in Canada but the legal website Mondaq cites the rights of graffiti artists whose works have been modified;
“In Canada, in addition to claiming copyright infringement, graffiti artists can allege that their moral rights have been violated by the prejudicial modification and reproduction of their works or an unauthorized use of their works in association with a product, service, cause or institution.
Section 14.1(1) of the Copyright Act provides that an author of a work has a right “to the integrity of the work,” which the Supreme Court (Théberge v. Galerie d’Art du Petit Champlain Inc.,  SCC 34) has deemed to be breached if the work is “modified to the prejudice of the honour or reputation of the author.”
If painting over half of Michelle Loughery’s Elvis mural is not “modification to the prejudice of the honour or reputation of the author”, then what is? And she is not even a graffiti artist but had the permission of the owners at the time to paint the murals on their walls. However I hope she won’t take legal action against the owner of the Desert Inn, where half the Elvis mural (his pink Caddy) disappeared, and I hope that Merritt’s country music buffs come to their senses, recognize Loughery’s rights in her works and co-operate with her. Loughery says that while she wants her rights respected, she doesn’t want to harm the community nor the youth who worked with her on the project. While legal action is always a last resort, one hopes that common interest in promoting Merritt and its murals will prevail and that country music harmony will once again come to the Nicola Valley.