On April 6, 2018, a bus carrying the Humboldt Broncos junior hockey team with another vehicle en route to a playoff game. Fifteen people were killed, including seven members of the team. Residents and were deeply disturbed by the tragedy and expressed their overwhelming sadness at the loss of so many lives in such a horrific accident.

Responses to the tragedy have ranged from to tributes at and . One reaction, which became widely circulated soon after the incident, was a simple yet powerful by Halifax Chronicle Herald illustrator Bruce MacKinnon. The cartoon depicts the province of Saskatchewan, personified in green hockey gear, injured and being escorted off the ice by other provinces dressed in red. The illustration communicates the importance of mutual aid and empathy to our collective Canadian identity. However, soon after MacKinnon’s cartoon was printed, Redbubble.com, an Australia-based online store that manufactures consumer products based on user-submitted artwork, featuring the illustration without the artist’s permission.

Not only is MacKinnon livid his artwork is being used without his consent, the artist is also . Mackinnon did not submit his own art to the website: someone else did, and would have, therefore, wrongly received royalties from any sales of the T-shirt by Redbubble.

While Redbubble removed the shirts once the Chronicle Herald threatened a lawsuit for copyright infringement, dozens of memorial T-shirt designs . Moreover, while indicating that artists may set up their designs to benefit charities, there is no evidence this is the case with any of the Humboldt Broncos merchandise.

Redbubble.com is one of many platforms that produce specialized consumer products like T-shirts, throw pillows, and bed-sheets based on user-submitted designs. Others include Design By Humans, Society6, and Teepublic. For struggling artists and cost-conscious consumers alike, these websites offer a novel way to disseminate original creative ideas around the globe while providing compensation to artists for their hard work. However, the Humboldt Broncos cartoon controversy demonstrates the drawbacks such websites have for artists. Because websites like Redbubble are open platforms based on user-submitted content, these companies exert little control over what users upload unless the sites are informed that the submitted design(s) is infringing an existing copyright.

Such companies often put the onus on users to ensure that submitted content does not infringe copyright or other intellectual property (IP). For example, the

“Ultimately, you take full responsibility for the works you upload and display on Redbubble. This is reflected in the . Use of the Redbubble website indicates continued acceptance of this Agreement. So please do us all a favour and if someone has created or owns the rights to a picture, painting, photograph, logo, story, poem or any other work, copyright, trademark or publicity right […] obtain consent before you use that work.”

As inspiring as many of the opportunities afforded by these sites may be, the potential remains for the work of artists—who do not wish to have some, or all of their creative productions commercially reproduced on a pack of coasters—to be misappropriated for the benefit of others.

There is nothing wrong with artistic adaptations, where, for example, another artist wishes to create a downstream interpretation of a previous artist’s work, transformative in nature, and then uploads that metamorphized piece to be printed on T-shirts and bedsheets. This is firmly within the boundaries of , if not in Canada. We live in a visual culture of appropriation and both explicit and implicit creative dialogue. The Supreme Court of Canada acknowledged this concept in , wherein Justice Ian Binnie stated, “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”[1] From my angle, this may mean that, for better or for worse, artistic dialogue could involve being inspired by works manufactured in the spirit of a completely different creative objective than what the original artist might have intended.

The current form of web-based art marketplaces, like Redbubble, seems ill suited to prevent verbatim copying. As the uploading of MacKinnon’s cartoon indicates, certain people’s intentions may not be particularly honourable. It may be that the design in question was uploaded by a single person seeking to create a T-shirt for themselves—but this detracts little from the reality that these art platforms can be used by opportunistic individuals with morally questionable motives. Perhaps it is time for these websites to develop methods of concretely verifying a piece of art was created by the artist uploading it, rather than simply allowing people to sign up and upload as they please and dealing with copyright infringement issues only as they arise.

Elias Rabinovitch is an IPilogue editor and JD Candidate at Osgoode Hall Law School.

[1] Théberge v Galerie d'Art du Petit Champlain, Inc., 2002 SCC 34 at para 30, [2002] 2 SCR 336.

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Canadian artists considering using Canadian samples, however, cannot do so without considerable legal risk. Although users who create works based on copyright protected content [1] must obtain a licence [2] from the copyright holder to commercially reproduce their work, obtaining licences is expensive[3]. As a result, artists often incorporate unlicensed samples into their tracks, creating potential liability for copyright infringement.[4] With no judicial precedents dealing with the sampling of Canadian music, artists cannot be certain if the unlicensed usage of a particular sample is “fair” and is thus legally permissible.

In , the SCC stated the Copyright Act represents a balance between “obtaining a just reward for the creator” and promoting users’ rights. As is, however, no ideal compromise for Canadian hip-hop musicians has been realized.

Consider the fair dealing exception to copyright infringement under Unlike in the U.S.—which permits unlimited types of use within the boundaries of the defence— restricts allowable usages to statutory categories like satire and research. The main advantage of fair use over fair dealing is, under fair use, unlicensed samples need not to fit into any specific “category” of use to avoid liability for copyright infringement. In contrast, if the reproduction of a sample in a song cannot be grouped under any of the enumerated categories under fair dealing, the exception cannot be taken advantage of.

Recently, the fair dealing exception has been expanded. In (2003) the SCC articulated a liberal fair dealing test to support “users’ rights.” In June 2012, Parliament passed which amended the Copyright Act with changes to protect users’ rights, including the additions of parody, education, and satire to fair dealing. However, as Prof. observes, parody, satire and education are already “readily assumable” under the pre-existing categories of research and criticism.[5] In reality, the above legislative and judicial changes have done little to improve the rights of hip-hop musicians.

Some have argued the flexibility of the fair use defence has resulted in unpredictable, case-by-case judicial outcomes. [6] While it is true the open-ended nature of the presents challenges in terms of predicting whether one is likely to succeed on it, it does not follow that Canadians should accept fair dealing’s restrictiveness. As Prof. Craig has argued, Canada’s fair dealing categories should instead be examples of uses, allowing Canada to retain the second part of the liberal CCH test, wherein multiple factors are considered in determining whether a dealing is fair, while removing the requirement that the dealing meet one of the statutory categories of use.[7]

Another obstacle preventing the legal recognition of Canadian sample-based music is whether sample-based hip-hop meets the originality threshold for copyright protection under s. 5(1) of the Copyright Act. Specifically, the originality issues for Canadian hip-hop revolve around the legal status of unauthorized derivative works (UDWs).

Although there is no provision in the Canadian Copyright Act describing “derivative works,” copyright holders nonetheless have the sole right to authorize adaptations of their work.[8] As Prof. notes, there is no provision in Canadian copyright law prohibiting UDWs from obtaining copyright protection.[9] Any UDW in Canada can be understood as “original” if it considered an independent creation, and displays a minimal degree of skill and judgment under the CCH originality test. However, this finding does not prohibit copyright holders from filing copyright infringement claims against authors of UDWs, indicating the need for judicial commentary to delineate the rights creators of original, downstream artistic content are entitled to. [10]

One might ask, if some hip-hop artists do not obtain licences for the samples they use, why should they be entitled to exclusive rights to reproduce their work? I would suggest all artists at least deserve protection from having the entirety of their work stolen. . While copyright should not grant creators exclusive rights over adaptations of their work, every author is entitled to enforce their copyright ownership against those who would create direct copies of their work for commercial profit.

There is a delicate balance to be achieved between the rights of individuals to protect and profit from their creations, and the rights of Canadians to utilize copyrighted cultural products to exress themselves. Striking this balance may start with the removal of the enumerated exceptions under fair dealing, and legislatively adjusting our originality standard so that UDWs are clearly included within its ambit. More importantly, encouraging hip-hop artists in Canada to use Canadian samples necessitates a collective cultural and legislative recognition of the dialogic interaction between appropriation art and the works that inspire it.

Elias Rabinovitch is an IPilogue editor and JD Candidate at Osgoode Hall Law School.

[1] Copyright Act, RSC 1985, c C-42, s 3 [Copyright Act]

[2] Copyright Act, s 2.7

[3] Kembrew McLeod & Peter Dicola, Creative License: The Law and Culture of Digital Sampling (Durham and London: Duke University Press, 2011) at 165.

[4] McLeod & Dicola, supra note 1 at 77.

[5] Carys Craig, Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Cheltenham, UK: Edward Elgar, 2011) 178.

[6] Barry Sookman & Dan Glover, “Why Canada Should Not Adopt Fair Use: A Joint Submission to the Copyright Consultations” (2009) 2:2 Osgoode Hall Review of Law and Policy 139 at 151-52.

[7] Craig, supra note 5 at 179.

[8] Copyright Act, supra note 1, s 3.

[9] David Vaver, “Canada’s Intellectual Property Framework: A Comparative Overview” (2004) 17 IPJ 125 at 138.

[10] Ibid.

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