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Reality Check:
when appropriation becomes copyright infringement

by Robert Preece

In this day and age, what does an artist really need to know about copyright? What exactly can legally and ethically be claimed as one's copyright—and as copyright infringement? And how to make sense of news reports in December 2008 of a demand sent to a 16-year-old collage artist in London for appropriating a photo of Damien Hirst's diamond-encrusted skull? Is this really about copyright, or is this about money, power, control, and artist-bad boy publicity?
To get some answers to these questions, I interviewed Paul Tackaberry, a copyright and trademark lawyer and counsel to Ridout & Maybee LLP in Toronto. What began as a general introduction to the ins and outs of art and copyright soon transformed into an eye-opening analysis showing how far standard art discourse may have steered away from the law: I was reminded that art historical precedents appear in no way to be airtight legal precedents. Plus “originality” in art appears quite disconnected from legal “originality.”

More about Tackaberry (LLB, LLM): he has over 20 years of experience in all aspects of intellectual property law, including prosecution, litigation and drafting of licenses, technology transfers, and contracts. He counsels clients from various countries on contentious matters such as infringement suits. Tackaberry has also taught IP and IT law at universities in Toronto, Montreal and Hong Kong and has published a number of articles in law journals. Over the years, Tackaberry has represented clients working in the areas of art, music, and publishing.

The following are excerpts of my conversation with Paul Tackaberry, who informs like an authoritative art critic with a cracking leather whip.

Robert Preece: Based on your experience, what are the top three things you think artists should know about copyright if they are new to this professional concern?

Paul Tackaberry:
I'd advise they learn how copyright arises in respect to the work that they create. They should also know about how ownership of copyright works; for example, they should make sure that if they create a work on commission for someone else, or someone makes a work for them, that there is an initial agreement on who the copyright owner is, what the copyright owner can do with the work, and the specified payment of a fee—or no fee. The third area I'd advise is learning a bit about how to avoid getting sued for copyright infringement. This included how to incorporate other people's work into their work and not going too far into the area of infringement. Within these three areas, there are a number of sub-issues, but what I've said is a general introduction covering most of it.

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