Artists and user-generated content

Posted on: May 16, 2016 by

My aunt, Gabrielle de Montmollin, a photographer and artist in Canada, is currently exhibiting her work in Toronto. I thought the show would be a good opportunity to discuss some of the copyright issues raised by her artistic approach. In particular, it serves as a way to explore a relatively new exception existing under Canadian law – and nowhere else, as far as I can tell – that can under certain circumstances allow people to use pre-existing works to create new content without infringing copyright: an exception for user-generated content (or UGC).

Likely the most captivating – and controversial – image in Gabrielle’s show is one that collates a photograph of Jian Ghomeshi with the cover of an old French edition of Vogue magazine. Ghomeshi, a Canadian ex-news anchor, was charged in 2014 with sexual assault of three women and, until his acquittal earlier this year, was at the centre of a media storm in Canada. The two images are brought together in what’s known as a lenticular print, a sort of hologram that reveals partially spliced combinations of the two images that change depending on the angle at which the work is viewed. Neither the photo nor the cover were original works created by Gabrielle: they were effectively ‘found images’. The juxtaposition (or is it an ‘intraposition’?) is especially alarming because the magazine cover shows a man and a woman in an embrace that could equally be called amorous and threatening. It is left ambiguous, and this is reflected in the title of the exhibition: We Shall See What We Shall See.


Using other people’s images in creative ways is the sort of thing that should in principle be protected by the new UGC rules in Canada. It is also the sort of thing done by ‘appropriation artists’. Arguably the best known of these is Richard Prince, an American, who himself got into hot water several years ago when he and a gallery displaying his Canal Zone series were brought before the New York courts by a photographer whose work had been used without permission. Prince was ultimately victorious (at least regarding 25 of the 30 Canal Zone works) because the court found that what he’d done was sufficiently ‘transformative’; that is, his works took the original photographs and out of them created new meanings, new expressions and new aesthetics. The transformative use test was reaffirmed in that case – and proved to be the key determination in interpreting the ‘fair use’ exception under US copyright law.

In 2012, Canada introduced the UGC rules into the Copyright Act, aimed at protecting non-commercial secondary works derived from pre-existing works. In such cases, where the secondary work is made solely for non-commercial purposes, and the prior work has already been published and is duly acknowledged (if possible), the exception can apply. There are other requirements too, including that the new work not have a substantial adverse effect on the exploitation of the prior work, a familiar factor existing under fair dealing case law. The UGC exception can apply to the use of musical works (think mash-ups), as well as artistic works, such as photographs. In many ways, it is a fitting exception for the digital 21st century.

But one critical factor is that the secondary work must be made for non-commercial purposes. This means that if the exception protects anyone, it will be the teenage wiz kid having fun with online images or the hobbyist poking around at the weekend, not professional artists looking to make a living. As soon as the work is intended to be sold, all bets are off. And so, we can ask, what is the actual effect of this change? Will it merely permit activities that already go on without rightholders taking notice? Or will it inspire new forms of creativity?

One thing is clear, it won’t protect every creative use of a found image made by an artist. Of course, there are other copyright exceptions that could serve this purpose. That said, the limits of the UGC exception certainly won’t stymy creativity. It’s not as though a professional artist will stop displaying, or selling their work, simply because of the risk of infringing some prior work. As Gabrielle’s show in Toronto demonstrates, artists will keep doing their thing – and sometimes it will be up to the law to keep up with them.