Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On on the intriguing case. engages novel issues of trademark infringement, trademark dilution, and cybersquatting (MetaBirkin.com domain name in this case) by artists in the metaverse.

Rothschild that depicted the Hermès Birkin bag in digital fur instead of leather, seemingly present in luxury handbags. The NFTs were on every further sale. After Hermès took down the NFTs from OpenSea, Rothschild moved to a different marketplace and “MetaBirkin” on Discord. Rothschild argued that “” and that the NFTs were a “” under First Amendment protection. Essentially, he argued that “MetaBirkins” were .

The jury found that Rothschild’s “MetaBirkin” NFTs . The key issue was whether the “MetaBirkin” was artistic expression under First Amendment protection, or a commercial product that causes consumer confusion. The jury concluded that while artistic expression was present, Rothschild intended to confuse consumers.

During the trial, Hermès provided evidence of actual consumer confusion which included about if “MetaBirkins” were connected to Hermès. Rothschild rejected these claims by providing that he to his website clarifying that the “MetaBirkins” were not connected with Hermès in any way and that his .

The jury was also influenced by Judge Rakoff’s reasons to deny the motion for summary judgment, and his exclusion of expert testimony. Judge Rakoff held that the test for artistic works applies where the key inquiry is This test was applied as opposed to the test, . Thus, Judge Rakoff held that the artistic relevance was present. Blake Gopnik provided expert testimony that Rothschild brought forth in this case. Had this been admitted, the jury ; thus aligning them in the artistic expression context.

Following the decision, Rothschild’s legal team that the dispute is “.” The team also pointed out Hermès’ hypocrisy as a luxury fashion brand who claim they care about artists but “.” This case has been followed by many to observe how the court resolves the issue of NFTs using intellectual property for the purpose of artistic expression. It is unknown whether this decision stands as precedent since intellectual property right disputes are significantly context-based. After this decision, artists can only conclude for certain the importance of obtaining legal advice before using IP in their NFTs, even if it is in the name of artistic expression.

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Sally Yoon is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

More recently, we have seen digital art open doors for artists to experiment with conceptual artwork like never before. Stijn van Schaik, a second-year Advertising student, on OpenSea, making it the . In addition, hosted Aitken's exhibition in four galleries, allowing visitors to view the exhibition alongside others around the world, within the same virtual space. As a result, are increasingly seen as not just a “referential pointer to the physical but a place of primary experience, worthy of being collected”.

Doug Aitken, installation view of Open on Vortic VR. © Doug Aitken. Courtesy the artist; 303 Gallery, New 91��ɫ; Galerie Eva Presenhuber, Zurich; Victoria Miro, London; and Regen Projects, Los Angeles

Last year, released a 7-part series titled “”, to examine how NFTs affect institutions that collect digital art, and highlighted that NFTs may possibly be the “unifying mechanism” used to package [work] done in the digital space. As well as encouraging the collection of , NFTs are a way for artists to financially benefit from works traditionally non-commodifiable (ex. conceptual or ). But before we all scatter to “NFTize” our souls, we need to address some legal issues surrounding the overall sustainability of digital artworks.

Are smart contracts “smart” enough?

discusses one of the most commendable features of NFTs - the automatic resale royalties. Blockchain smart contracts track payments and distribute a percentage of the resale profits back to artists. However, there are , which include transacting on a marketplace platform on another blockchain, so that the NFT’s smart contract is not notified of the resale. Therefore, keeping collectors transacting on platforms that recognize the existing code triggering the resale royalty remains a constant challenge. For now, the best way to avoid this issue remains a specifically drafted contract with a resale royalties provision, tailored to the individual NFT.

Sustainable Models and Practices for Digital Conservation

A sustainable model will offer benefits to both the artists and the collectors. Allowing for ensures that collectors are committed to the integrity of the resale royalty process and increases the likelihood of the system functioning as it should. Sustainable practices involve the artists’ clear statement about the rights and licences being transferred with the work. Would the artist allow the owner to transfer the work to another platform in the event of blockchain issues or technological obsolescence? Can the owner lend the work to other venues? A digital work's conservation depends on these legal considerations.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Over 3 years have passed since New 91��ɫ’s District Court a ruling in the matter of Andy Warhol’s “Orange Prince”, and the ripples of the case have finally made their way up to the Supreme Court. On Wednesday, October 12th, 2022, the judges of the US Supreme Court heard from both sides, and considered whether Warhol’s , which he had based on a 1981 photograph of Prince by photographer Lynn Goldsmith, may be considered a use that is “fair”. 

The doctrine of fair dealing in Canada has long played an important role in balancing the scales of copyright law from leaning too far in favour of copyright holders. The fair dealing exceptions recognize certain uses of protected works as benefitting society, and thereby safeguard those uses from findings of infringement. The parallel doctrine in the US tracks along similar reasoning and is known as the ‘fair use’ doctrine. In determining whether a use of a copyrighted work is “fair,” courts consider numerous factors, including whether the use in question is “transformative” of the original material.

In , the Supreme Court was invited to assess whether a work was “transformative” when it conveys a different meaning or message from its source material, or whether, in cases where the accused work “recognizably derives” from its source material, judges are forbidden from deriving or considering such meanings. It was an engaging proceeding with an abundance of references to pop culture icons and current affairs, and was punctuated at times by laughter in the courtroom at an amusing hypothetical posited by one of the judges.  

Roman Martinez appeared on behalf of the Andy Warhol Foundation, and clarified the issue at hand, as well as the Foundation’s position: “[b]oth courts below agreed, and Goldsmith doesn’t dispute, that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes.” Martinez argued that while Goldsmith’s original photograph captured a “vulnerable-looking Prince,” Warhol’s depiction turned it into a commentary on celebrity and fame – an entirely different meaning and message. 

The judges somewhat pushed back against this argument. Justice Elena Kagan suggested that in Hollywood, while a movie adaptation of a book might introduce plenty of new elements that may make a derivative work “transformative” under Martinez’s proposed test (“...new dialogue, sometimes new plot points, new settings, new characters, new themes”), one would still expect some sort of licensing agreement to be required.

Chief Justice John Roberts and Justice Clarence Thomas also commented on Martinez’s arguments, albeit in more lighthearted terms. The Chief Justice wondered whether a claimant who depicted Prince with “a little smile on his face” may advance the argument that the “meaning or message” of the work was fundamentally changed to convey that “Prince can be happy” or that “Prince should be happy.” Justice Thomas in turn asked Martinez to imagine the Justice at a Syracuse football game as a Prince fan, “which [he] was in the ‘80s.” Justice Kagan interjected, “No longer?,” to which Justice Thomas replied, “Well…so only on Thursday night.” This elicited some laughter in the courtroom. Justice Thomas continued, “And I decide to make one of those big blowup posters of ‘Orange Prince’ and change the colours a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me for infringement?,” insinuating that the changes and add-ons may be considered to convey a new “message” to Warhol’s work, under the Foundation’s proposed test. In response, Martinez emphasized that the verdict in both scenarios would largely depend on the degree of transformation in meaning or message, as well as the other factors in the ‘fair use’ analysis, such that a holistic assessment may be applied.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

A high-tech solarpunk utopia in the Amazon rainforest, a Pikachu fine dining with a view to the Eiffel Tower, a mecha robot in a favela in expressionist style – if you are struggling to visualize any of these descriptions, an AI art generator could most likely help you out. All of the prompts are suggestions by , an open-source AI art generator launched in 2022 by startup .

As its name suggests, AI-generated art refers to art generated with the help of artificial intelligence. I like to use AI art generators to help visualize environments, such as where I would rather be writing this blog as the weather gets chillier in Toronto.

An AI-generated image of the prompt “a laptop and bubble tea on a table under a parasol at a Hawaiian beach during sunset, photorealistic” by Stable Diffusion.

Aside from being a fun tool for curious users to play around with, AI art generators serve as a for visualizing concept art and automating repetitive tasks. Furthermore, in more recent years, AI art has enabled artists to explore previously uncharted territory. For example, Lynn Hershman Leeson’s “uses algorithms, performance, and projections to draw attention to the inherent biases in private systems like predictive policing, which are increasingly used by law enforcement”.

Understanding “Open-source” AI-Generated Art

Similar to previous models, Stable Diffusion is a text-to-image generator (similar to and ). It differs from these models in that it is open-source, meaning that its underlying code and model has been trained on publicly available data. The motive stems from Emad Monstaque’s (Founder of Stability AI) that we will only realize AI’s potential to solve humanity’s biggest challenges “if the technology is open and accessible to all”. Stable Diffusion’s open model equips anybody with a web browser to generate images (including violent and pornographic ones) according to their prompts, including for commercial use.

Why Visual Artists are Concerned

Open-source AI-generated art can be seen as a threat to commercial artists in practically every industry. In , Greg Rutkowski, a Polish digital artist, spoke about the difficulties that have come with his artwork’s popularity in the world of text-to-image AI generators. Known for his distinctive ethereal style, Rutkowski found his style becoming one of the most commonly used prompts in Stable Diffusion. Initially, the artist thought this was an effective way to gain publicity until he realized through some Google searches that his name was becoming associated with work that was not his.

Rutkowski is not alone - more artists are beginning to see their artworks gain popularity with similar models and have . Others have raised concerns about data protection and privacy due to their artwork being either personal or linked closely to an existing person. These concerns have consequently about the potential for artists to opt out of the data training process. However, some say this would be impossible as it would involve throwing out the whole model “built around nonconsensual data usage”. Moreover, with the source code out in public, some are under the impression that it will be like “putting toothpaste back in the tube”.

While some companies and artists have been optimistic in their beliefs that AI will ultimately benefit humanity and generate new ideas for their careers, other artists are finding it necessary to build a coalition to fight back with proper regulations and protect the future of their professions.

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

The reported on August 7, 2022 that Innovation Minister Francois-Philippe Champagne and Heritage Minister Pablo Rodriguez are working on reforming the to include an artist resale right (ARR) within the scope of the act’s protections. First enacted in France in 1920, ARRs have now been adopted by in the world, including India, the United Kingdom, the Philippines and Australia. To understand why ARRs may come into force, it is important to assess the various arguments in support of and against this legislation.

ARRs formed part of the Liberal Party’s in 2021, but have been central to artist rights advocacy for according to – the Canadian Artists Representation / Le Front des artistes canadiens – a non-profit organization of professional visual artists. Under current Canadian law, artists such as sculptors and painters receive no profits from their works’ resale. One commonly cited example is the late Inuit artist Kenojuak Ashevak’s print titled . Hailing from Kinnigait (formerly Cape Dorset), Nunavut, Ashevak originally sold her print for in 1960. In November of 2018, a limited-edition Enchanted Owl print sold for $216,000 at Waddington's Auctioneers and Appraisals Toronto: nine thousand times the original price and breaking the record for the most expensive Canadian artist print ever sold via auction.

If ARRs existed in Canada, Ashevak’s estate would have received $10,800 for the sale of Enchanted Owl. CARFAC has been advocating for to be granted to the original artist or their estate, pointing to the fact that half of Canada’s visual artists earn less than $18,000 per year. In its , CARFAC also highlighted the reality that many artists living in isolated northern communities live in impoverished conditions, while their work dramatically appreciates in value. In , Rankin Inlet-based artist Theresie Tungilik noted that “[the] artist's resale right will have a positive financial impact as 10% of Canada’s export is Inuit art.”

The rise of NFTs and blockchain technology – despite providing an – has also provided opportunities for artists to be compensated for the appreciation of their works. The embedding of “smart contracts” in NFT sales allows for the Exercising control of downstream purchaser actions for traditional or non-digital artistic mediums is more complicated. Outside of , which protect the original artist’s right to be associated with the work without modification or destruction, agreements of purchase and sale generally enable the purchaser to do whatever they see fit with the work.

While organizations like CARFAC, (Society for Composers, Authors and Music Publishers of Canada) and (Regroupement des artistes en arts visuels du Québec) are staunch supporters of the artist resale right in Canada, other groups remain hesitant. Both the Contemporary Art Galleries Association (AGAC) and Art Dealers Association of Canada (ADAC) are , arguing that ARR collections would be a bureaucratic burden for small galleries, as well as raise the price of art and reduce sales. Interestingly, a study done in the UK by WIPO entitled “” demonstrated that the resale right had no negative impact of the price of artworks or the competitiveness of markets. The study also found that the market continued to grow after the implementation of the resale right in 2006.

Not all Canadian galleries oppose ARRs. Jay Isaac, an artist himself who runs the Peter Estey Fine Art auction house in New Brunswick, has to . Isaac told Canadian Art that “as a small, artist-run business I have to say the idea of a policy is great, and the idea of a resale right becoming law is great—but sometimes I think that [lack of law] is used as an excuse not to move forward. People with money and power should really be doing this anyway.” Although no specific amendments have been presented yet, it will be interesting to see how the conversation regarding ARRs continues to develop in Canada. Most importantly, ARR discussions provide an opportunity to consider how to best support our diverse artists and creatives.

Further Reading:

Michelle Mao’s IPilogue on ARRs and NFT loopholes

�����䴡��’s to the Standing Committee on Industry, Science and Technology as part of the statutory review of the Copyright Act

WIPO Magazine, “” by Catherine Jewell

Inuit Art Foundation’s

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Ariel Goldberg is a 1L JD Candidate at Osgoode Hall Law School.

Typically, include strictly hygienic recommendations, but tattoo artist Kat Von D might have a unique suggestion: prepare to be an exhibit in a copyright infringement lawsuit.

Back on February 7, 2021, award-winning professional photographer Jeffrey B. Sedlik (“Sedlik”) filed in the U. S. District Court for the Central District of California against Katherine Von Drachenberg, famously known as Kat Von D (“Kat Von D”), and her companies Kat Von D, Inc. and High Voltage Tattoo, Inc. for copyright infringement under the Copyright Act of 1976. Sedlik claims that Kat Von D infringed the copyright protection of his iconic photograph of world-famous jazz musician Miles Davis (“Davis”) when she tattooed the image onto a client’s body without authorization and posted photos of the tattoo on social media. On May 31, 2022, triable issues on substantial similarity and fair use.

Background

In , Kat Von D inked a tattoo of Sedlik’s Davis photograph on the arm of lighting technician Blake Farmer (“Farmer”) for free. Prior to the tattoo sessions, Farmer selected the image from a Google search. Kat Von D did not request authorization or a license to reproduce the image. To freehand ink the tattoo, Kat Von D created a stencil by using a light box to trace the Davis photograph. On March 18, 2017, Kat Von D posted on her personal Instagram of herself using the Davis image as a reference while inking the tattoo. On May 16, 2017, Kat Von D posted on her personal Instagram account.

Sedlik’s copyright infringement claims raise the of whether a tattoo artist commits copyright infringement when replicating a copyright protected image as a tattoo. In comparison, previous copyright infringement cases over tattoo art focus on an existing tattoo being reproduced in another work rather than the copying of a reference image. For example, in , a tattoo artist sued the video game producer Take-Two for copying in a video game series six tattoos that the tattoo artist inked on World Wrestling Entertainment (WWE) wrestler Randy Orton.

The Arguments

Kat Von D claims Sedlik does not have protection over the photograph’s subject matter and pose because Sedlik .  In Nike photographed Michael Jorden similar to professional photographer Rentmeester’s original photograph of Michael Jordan leaping to dunk a basketball in a basketball net. The Ninth Circuit held that Nike did not infringe on Rentmeester’s photograph because Rentmeester’s copyright protection cannot prevent photographers from the idea of Jordan leaping, rather only the specific details expressed in the photo he took. While the Court agrees that the ‘Sssh!’ pose is not protectable, the Court states that the , such as lighting and camera angle, are protectable.

Kat Von D argues that the use of the photograph in creating the tattoo is fair use because the tattoo is transformative . First, the tattoo has a new meaning because Farmer selected the tattoo due to his personal identification with Davis, whereas Sedlik’s portrait commented on Davis’ . Second, the tattoo has a new meaning by virtue of being a tattoo because tattoos have personal meaning to their wearers. Third, Kat Von D created her own interpretation by using a freehand method of inking the tattoo. She added movement to the hair, eliminated the black background and created a new melancholy aesthetic. Interestingly, Kat Von D urges the Court to consider “  as a non-statutory factor of fair use.

the Court rejected the argument that the tattoo has a different meaning solely because it is placed on the human body. The Court was more convinced that Von D’s freehand tattooing style created visual differences. However, that these differences do not make the tattoo transformative because the differences only arise from the medium of tattooing.

Moving Forward

The broader issue of translating a copyright protected photograph into a different medium with a different purpose will be addressed by the U. S. Supreme Court in The case questions if Andy Warhol’s “Prince Series” infringes professional photographer Lynn Goldsmith’s copyright protected photograph of Prince by using the photograph as an artistic reference without authorization. The decision on Kat Von D’s tattoo until the U. S. Supreme Court’s decision on Andy Warhol because the case could set precedent for fair use, specifically when the use of the original work is transformative enough to avoid copyright infringement.

The outcome of this case may alter the tattoo industry. Clients often request tattoos of Google-searched images or copyright protected works like album covers. The possibility of a tattoo artist being liable for copyright infringement creates complex implications for what tattoo artists are willing to ink as tattoos. More generally, the case towards balancing the rights of copyright owners and the right of tattoo owners’ to privacy and bodily autonomy. 

Further Reading

For more information on intellectual property law and tattoo art see Emily Prieur’s IPilogue article

For more information on The Andy Warhol Foundation for Visual Arts, Inc. v. Lynn Goldsmith, et al. see Tianchu Gao’s IPilogue article

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Since 2017, the famous Japanese artist, Yayoi Kusama, was running a global tour of her retrospective show Infinity Mirror. She was known for creating kaleidoscopic obstacles and immersive experiences with colored lights, mirrors, and inundating polka dots. These spacey wonderlands, first created by Kusama in the 1950s, went viral on the Internet. It had attracted more than five million visitors around the world to wait in long queues to see the works. Los Angeles Times described the unprecedented frenzy in the US as “.” Kusama’s popularity reflects people’s interest in art that generates interactive experiences and activates all senses in an immersive environment. Similar experiential exhibitions have quickly started trending around the world. 

One of the most successful examples is the immersive exhibition of Van Gogh’s paintings. If you use Instagram, you must have seen photos or short videos of animated paintings by Van Gogh projected all over the walls of a spacey room, creating a fantastical environment. In the past two years, these exhibitions have spread to many cities in Europe and America, including . But what many of you may not know is that these shows are not organized by the same organization.

Van Gogh’s paintings have been around long enough to be legally reproduced. As the immersive Van Gogh shows became so popular around the world (and certainly on Instagram), more creators are joining the lucrative business. which immersive Van Gogh of them is the original one. had warned consumers about the multiple vendors of experiential Van Gogh shows in the US in 2021. These shows have confused and who paid to see something totally different from their expectations.

The Competition and Consumer Protection Commission of Ireland confirmed that there is of consumer protection law from an initial review of the different shows. So far, no organization has proposed to copyright its show. A similar copyright controversy surrounding Van Gogh happened in 2001 between two websites featuring digital copies of Van Gogh’s works.

What is ironic is that the immersive Van Gogh shows the actual artist himself. “They are designed to create crowd-pleasing versions of an artist's existence who didn't sell any work in his lifetime. ... There's an irony to seeing an artist whose work didn't have that kind of economic value be turned into a tourist attraction,” as artist and critic pointed out.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On  July 18^th, 2022, the world’s second-largest art auction house, Christie’s, announced the establishment of , an investment fund that will support emerging tech companies whose products could have an impact on the art market. According to a representative, the fund is estimated to hold “.” Some may think that it is strange that an auction house would launch a venture fund, but it is not the first time that Christie’s has made a daring venture to embrace the latest technologies in its highly exclusive art businesses. The auction house was one of the first art institutions to arrange NFT sales. The March 2021 sale of digital artist Beeple’s work, , sold for a record-breaking price of 69.3 million. It even launched a two-day conference, , in July 2022, which brought in leaders from both industries to discuss the role and impact of technologies in the art world.

According to the global head of Christie’s Venture, Devang Thakkar, to solve the problems that have long bedeviled the art trade, such as authenticity disputes and safe digital asset transactions.

Christie’s Ventures will focus on : 1) Web 3.0 innovations such as non-fungible tokens, cryptocurrencies, blockchains, etc.; 2) art-related financial products; and 3) technologies that enable seamless consumption of art.

Christie’s Venture’s first investment supported a Canadian Web 3.0 company called . It provides a protocol that allows different blockchains to communicate and work together. The company had already raised CAD$ dollars in its first funding round earlier this year. It will work with Christie’s to “find new and innovative ways to create the most accessible, frictionless experience with assets indexed over multiple blockchains,” says , LayerZero Labs co-founder.

It is worth noting that Christie’s advancement into the venture capital market happened in the context of the recent crash in crypto and the broader selloff in tech stocks. Traditional venture capital firms are pulling back from the risky bets on startups, and the funding for startups altogether fell in the second quarter compared to the first quarter. Many crypto startups are undergoing since June. In fact,  from $93.2 million in 2021 to less than $5 million during the first half of this year. 

Despite the economic downturn, Christie’s clearly believes in the increasingly prominent role of technology in the art market. In fact, the world’s largest auction house, Sotheby’s, is also “actively investing in and acquiring early stage ventures,” though not through a formal venture-capital arm, according to an article in  The . Christie’s move into the venture capital space challenges the traditional image of what an auction house can do.

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Tianchu Gao is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Last year, Andy Warhol lost an infamous copyright infringement lawsuit against photographer Lynn Goldsmith regarding an image of the pop singer Prince.  The focus of the conflict was the meaning of “transformative works” in the U.S. Copyright Act—whether Warhol’s print is transformative of the original photograph so that it qualifies as fair use. Both the and the   considered aesthetic characteristics of the two pieces, but such analysis seems to miss the point. As an avant-guard artist of his time, Warhol used the mechanical process of copying to challenge the conventional notion of art. It also engaged critically with rising capitalist culture and pop culture in post-war America. In this sense, the act of copying is the very medium of Warhol’s art.

There seems to have always been tension between artistic creativity and copyright law. Copyright, in the simplest terms, is “.” It protects the authors’ exclusive rights to reproduce and publish their creations. Artists, however, have long been engaging in deliberate and publicized copying as a form of artistic expression. The belongs to the long tradition of modernist art that questions the nature and definition of art itself. Terms like “ready-made” and “appropriation” appear in any introductory course to contemporary art. Besides Andy Warhol, other famous contemporary artists like and have also faced copyright claims. To many artists, copying is of critical artistic value because the action “” and “” of art. Yet the current law of copyright cannot fully accommodate the sophisticated theories of contemporary art.

New technologies, such as virtual reality (“VR”) and augmented reality (“AR”) further complicate things. Because of pandemic restrictions, many museums and galleries now rely on new media technology to attract audiences. The blockbuster Leonardo da Vinci at the Louvre, Mona Lisa: Beyond the Glass, gave viewers an interactive VR experience to explore the painting and its context. In other cases, museums invited artists to create derivative works based on museum collections. For instance, the National Museum of Singapore invited the Japanese art collective, teamLab, to create an using visual motifs from the museum collection. Similarly, Art Gallery of Ontario invited digital artist Alex Mayhew to create of the old paintings collected by the museum using AR technology. Exhibitions like these provide audiences with refreshing experiences, but they also require museums to exercise and navigate the legal problems.

The power and resources enjoyed by large art institutions do not go unchallenged. In 2019, a group of renegade artists developed an app called that mocked the iconic paintings by Jackson Pollock at the Museum of Modern Art (MoMA) in New 91��ɫ. Viewed through the app, Pollock’s paintings are either retouched or entirely replaced. The purpose of the artwork was to call attention to the power hierarchy and elitism in the art world. Although MoMA and the Pollock-Krasner Foundation stayed silent about the app, the paintings by Pollock are and technically could give rise to an infringement claim. It would be interesting to see how copyright law would deal with artistic creations that were meant to be offensive or even illegal.  

The authoritative nature of law seems to go against the inclination of art to break rules and challenge conventions. The law of “,” or “ in Canada, cannot satisfactorily address the questions raised by the changing practices of contemporary art. Luckily, the Supreme Court of the United States will further develop the law as it had decided to the dispute between Warhol and Goldsmith.

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Michelle Mao is an IPilogue Writer and an incoming 2L JD candidate at Osgoode Hall Law School.

Imagine you are a new artist, who sells your art for $500 dollars, which is enough to cover the cost of supplies and your time spent on the piece. Then you find out ten years later that your original piece was resold for over $50,000 dollars while you are destitute. This situation is why artists around the world advocate for .

An Artist Resale Right (ARR) allows the artist or the artist’s estate to profit or financially benefit from the sale of the artist’s work in secondary markets after the original sale. Artists and advocates consider this right as a part of the wage artists should receive for their profession and livelihood. As of May 2022, Canada does not have a policy towards ARR in place.

Supporters have several arguments in favour of implementing ARR in Canada. First, artists as a group are more vulnerable to financial instability or more likely to take on additional jobs to achieve financial stability. ARR can provide a that can help artists improve their financial stability. Second, other artistic professionals, such as and writers, already have systems in place to continuously profit from the downstream payments made in relation to their original work.

Those opposing resale rights raise concerns regarding the possible on art sellers, and art resellers may not feel properly compensated for the risk they incur when collecting pieces for galleries and resale. regarding compliance with proper payment and the lack of global ARR standardization can complicate many logistics.

While the law of ARR is no longer a novel idea in the legal world, the importance of protections for an artist’s fair share of profits is ever-increasing as Non-Fungible Tokens (NFTs) become mainstream. Currently, the specific wording creates for NFT transactions to forego payment to the original artist. This is because NFTs are a “one-time copy” of original art, and thus resale of the NFT does not activate ARR entitlements, which only apply to the original work.

Overall, profits made from the sale (and resale) of art must be balanced between artists, art professionals, art curators, auction houses, etc. sWith the value of artworks having the potential to increase so exponentially over time, it may be proportional for artists to make a percentage of resale revenue. The secondary income would acknowledge the artist’s mastery and skill, while properly compensating them for the value of the art that they created. Now, as NFTs become increasingly tied to , future artist compensation is increasingly important. Future ARR advocacy should consider how ARR can and should be adapted to not only address logistical complexities but also NFT loopholes.

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