Estates of artists pose problems. Issues arise with respect to the ownership, use and disposal of the artist’s works.
An important consideration relating to copyright and estate assets is the concept of “Dickens provision” under Canada’s copyright laws.
Briefly put and simplified, the Copyright Act creates reversionary rights with respect to the heirs of an author. Notwithstanding any assignment agreement made during the lifetime of the author, the author’s copyright reverts to the author’s estate 25 years after the death of the author.
The provisions are technical, and there are important notice provisions that apply and must be followed before the reversion can occur. This was the issue in the 2002 decision of Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc.
In Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc., the court sets out the reasoning behind the provisions: “This complex statutory framework of reversionary copyright was originally created in England to relieve against the hardship suffered by the impoverished families of deceased authors”. The court goes on to note that the reversionary rights have been repealed in England, but remain in force in Canada.
The Dickens provisions were applied in the matter of Winkler v. Roy. There, Thomas Kelley, who authored several books on the Black Donnellys, died. The court determined that under the Dickens provisions of the Copyright Act, his estate was the owner of the copyright, notwithstanding the fact that Kelley assigned the rights during his lifetime. The assignee would own the copyright until a date 25 years from Kelley’s death, and thereafter, the copyright would belong to his estate.
Subsequently, the Kelley estate sued another author, Nate Hendley for copyright violations, alleging that Hendley copied Kelley’s story of the events relating to the Donnellys. The action was dismissed. The court held that Kelley presented his version of the story as being true historical facts. The rule that “there is no copyright in facts” applied, even if some of the facts as presented by Kelley were subsequently shown to be untrue and thus literary creations.
One takeaway from all of this is that estates of artists require special care and consideration. Expert advice is essential to their proper administration. A second takeaway is to avoid feuding with your neighbours.
Have a great weekend.
 On February 4, 1890, after years of feuding, a mob of townsfolk attacked the Donnelly homestead, leaving five members of the Donnelly family dead and their farm burned to the ground. Despite two trials, no one was ever convicted of the murders.
A podcast on the event, written by Nate Hendley, can be found here.
When someone composes an obituary for a loved one who has passed away, carefully selecting the photograph to go along with it, one would suppose that the last thing on their mind is the copyright they may hold in that obituary and photograph. Of course, few people expect that an obituary could be the subject of republication or possible copyright infringement.
However, one website has been reproducing obituaries in their “database of deceased people”, leading to questions about ownership of the obituaries themselves, as well as the photographs accompanying them. The website reproduces obituaries and photographs, apparently without permission from the individuals who originally created and posted the obituaries. As reported in this Global News article, one family even states that an obituary for their loved one, which had not been written by their family and contained a number of errors, was posted on the website less than a day after their loved one passed away. The family did not know who wrote the obituary, although the website released a statement that all of the obituaries they re-post are already on the internet.
A recent article in The Lawyer’s Daily discusses an application for certification of a class action copyright claim against this obituary database website. The application claims that the website is infringing copyright and moral rights in respect of the obituaries and photographs. The moral rights claim relates to the website’s monetization of the obituaries by offering options to purchase flowers, gifts, or virtual candles, through affiliate retailers. Some funeral homes offer a similar service, but the article notes that the unsavoury nature of the website’s business model, which consists of “scraping” obituaries from elsewhere on the internet, without permission or notice, and making money by doing so through advertisements or the selling of flowers or virtual candles, could provide some support for the moral rights claim.
In relation to the copyright infringement claims, there may be some obstacles to overcome, particularly in relation to ownership of the copyright. According to The Lawyer’s Daily article, under the Copyright Act, R.S.C., 1985, c. C-42, the person claiming a copyright infringement must be the owner, assignee or exclusive licensee of the work in question. An assignment of copyright must be in writing. As mentioned in the article, this could create an issue if the photograph used in the obituary was taken, for instance, by a stranger.
Damages in the event of liability are also uncertain. In a recent case with similar facts, where the defendants were found to have infringed on the plaintiff’s copyright, the court awarded statutory damages of only $2.00 per image because the cost of capturing the images in that case was low. However, given the emotional aspect of obituaries, it is possible that the facts in this case could lead to a larger damages award.
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April 21, 2017 marked one year since the death of the beloved recording artist, Prince. We have previously blogged about the legal issues surrounding Prince’s Estate that have emerged since his death. Although more than a year has now passed, the Estate continues to be engaged in litigation.
According to media reports, producer George Ian Boxill tried to release an EP containing previously unreleased songs by Prince to coincide with the first anniversary of his death. Boxill asserted that he had the right to release the music. In a lawsuit commenced by Paisley Park Enterprises, Prince’s Estate disagreed and alleged that Boxill was in breach of the recording agreement that he had signed with Prince.
The Estate was initially successful in blocking Boxill’s attempts to release the EP of new music. However, according to a new report in TMZ, Boxill has now filed additional legal documents that state that the unreleased music was not the subject of a nondisclosure agreement.
Separately, as we have previously blogged, Prince died without a Will and any known children, resulting in claims from a number of possible heirs.
According to a recent news report, the Minnesota judge presiding over the proceedings had indicated that he would not make a declaration regarding the heirs of Prince’s Estate until appeals by other potential heirs whose claims had been rejected were allowed to run their course. Lawyers for Prince’s sister and half-siblings have now argued that this delay will unnecessarily increase costs and hinder the proper administration of the Estate.
We have previously blogged about the importance of carefully addressing issues regarding intellectual property and any possible rights the estate may have after the testator’s death in a testator’s estate plan. Deceased writers, musicians and other artists may be parties to agreements that bind their estates and affect the rights and control over their intellectual property.
It is generally advisable for drafting solicitors to ensure that such legal documents are reviewed as part of a creative professional’s estate planning. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law, to ensure that the estate plan adequately addresses any possible rights the estate may have after the testator’s death. Disputes over the beneficial ownership and control of a testator’s intellectual property can result in protracted and expensive litigation.
The legal issues surrounding Prince’s Estate reiterate the importance of careful estate planning while the testator is still alive. Lack of certainty regarding the beneficiaries of the estate, the deceased’s intentions and the property/rights of the estate can significantly increase the risk that the estate will become embroiled in protracted litigation.
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