With the holiday season upon us, our clients may be interested to know there may be serious copyright implications to how they choose to celebrate. This may relate to everything from the use of original artwork on the cards they send out, to the music played at office parties, to the Santa hat playfully placed on the austere head of the company founder’s bronze sculpture in the front lobby. With this in mind, and in the spirit of the season, here is a brief list of copyright issues to consider at this special time of year.

Holiday Cards and Original Works of Art

Rather than purchase commercially available, generic holiday cards, many businesses prefer to produce their own unique cards, using images taken from works of art that form part of their private art collections. In other words, they would simply take an attractive Winter in Charlevoix oil painting off the wall, and send it out to a commercial printer to make a thousand or so cards to be forwarded to clients.

But just because you own a painting doesn’t mean you have the right to copy it. Normally, when a painting is sold, the copyright in that painting (which includes the right to copy it, along with other rights) remains with the artist (or his or her estate). If the painting is still protected by copyright, there would need to be an agreement providing the purchaser of the painting with the right to copy it. Generally, the painting is no longer protected by copyright if 50 years have passed since the artist’s death.

Before a company sends any works of art to the printer to be made into holiday cards, it had better ensure that it has obtained the right to do so from the copyright owner.

Use of Music at Office Parties

In Canada, as in most countries, copyright collectives exist which represent the interests of musical composers, music publishers, musical performers and record labels. These collectives are essentially associations of rightsholders that have been created to collect royalty payments for distribution to their members whenever music is performed in public or communicated to the public by telecommunication. The principal ones in Canada are SOCAN and Re:Sound; the royalties that are paid to them are set out in tariffs certified by the Copyright Board, a tribunal located in Ottawa.

These tariffs for the use of music cover virtually all the public uses of music that one could possibly imagine. This means that different rates are paid to SOCAN and Re:Sound for the use of music by the CBC, commercial radio stations, hotels, restaurants, fitness clubs, and so on.

What must be emphasized, however, is that SOCAN and Re:Sound collect tariffs for the public, not private, use of music. As such, if a business were to hold a holiday party in an entirely private setting, such as in its own offices or in a private home, and played music that belongs to the members of SOCAN and Re:Sound, it would not have to pay any royalties. On the other hand, if the party were to be held in a public venue, such as a banquet or reception hall, or a hotel or a restaurant, liability to pay SOCAN and Re:Sound would likely be triggered. Any such tariffs would, however, be the responsibility of the venue itself, which may choose to include them in the final bill issued in relation to the event.

Moral Rights in Art

In the same way that an artist retains the right of reproduction in an original work of art that is distinct from the physical embodiment of the work itself, the artist also owns what are known as the moral rights in the work. This includes the right to the “integrity of the work.” As such, any distortion, mutilation or other modification to a work of art such as a painting or a sculpture, would infringe the artist’s moral rights and be subject to infringement proceedings.

Perhaps the best known example of an infringement of the moral rights of an artist in Canada ‒ which also just happened to occur at Christmas ‒ is the case of Michael Snow’s sculpture of the flying Canada geese in Toronto’s Eaton Centre. In 1981, management of the Eaton Centre had red ribbons tied around the necks of the geese as part of its Christmas decorations. Michael Snow was displeased that his artwork had been modified in this manner and pursued legal action. Not surprisingly, the addition of the red ribbons to the geese was held to be prejudicial to Snow’s reputation and an infringement of his moral rights in the sculpture.

So, if a company has a sculpture of its founder standing in the front lobby of its place of business, notwithstanding the gaiety of the season, it might be best not to try to improve his (or her) looks by the addition of a red Santa hat or any other similar holiday paraphernalia. The artist may not appreciate it. However, if the artist has been dead for more than 50 years, and the work is consequently in the public domain, this rule does not apply.

Holiday Photographs and Cards

During the holiday season, it is common to receive cards that include individual and group photographs. Such cards raise their own set of copyright considerations.

As a result of amendments made to the Copyright Act in 2012, the owner of the copyright is the photographer, rather than (as was previously the case) the person who commissioned the photograph. However, there is also an exception in the Copyright Act that permits the person who commissioned a photograph to use it for private or non-commercial purposes without the photographer’s authorization.

This being said, at this time of year, one often receives cards with a group photograph of a company’s employees or executives (usually happily clustered up and down a circular staircase on company premises). Because of the commercial nature of such a photograph, including the fact that it is usually distributed to clients, it would likely not meet the test of being used for private or non-commercial purposes. As such, the prior permission from the photographer would undoubtedly have to be obtained to use the photograph in this manner.

Holiday Mash-Ups

During the holiday season, many ‒ mostly younger ‒ people often like to create their own video content which they post on websites such as YouTube. These videos often incorporate elements of copyright-protected works in the creation of an entirely new artistic work. These are generally known as mash-ups, and may include “borrowed” sound recordings. For example, the mash-up may include music taken from popular musical artists who have a repertoire of Christmas songs, whether it be Nat King Cole or Holly Cole.

These mash-ups are now allowed under Canadian copyright law, subject to a few requirements. These include: that the new work must be used solely for non-commercial purposes; that its creator had reasonable grounds to believe that the original source copy was not infringing; and that the new work does not substantially harm the market for the original work.

Conclusion

Although a review of copyright issues is probably timely at any time of the year, the holiday season, being so festive, provides an extra impetus to address some of these issues. We trust that they have been enjoyed. On a final note, we would only add that no one should be concerned by anything written above in the event they intend to sing traditional songs or carols in the streets. These carols (the good ones, anyway) have usually been in the public domain since our great-grandparents were children.