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 The court goes on to note that the reversionary rights have been repealed in England, but remain in force in Canada.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[1], 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.

Paul Trudelle

 

[1] 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.