I recently watched Meghan Maulucci’s video linked in her IP Law post “Meg’s IP Law Knitting Circle: Protecting Crochet Creators”: https://www.youtube.com/watch?v=gQbF4o5uGII&ab_channel=MeghanMaulucci
Meghan’s video examines whether we should revise the current legal understanding of what is copyrightable. She notes (starting at 2:30) that in the U.S. context, copyright doesn’t protect certain classes of works, like fashion designs, which fall under a utilitarian category, unless there is an aesthetic design extricable from the functional elements of the work. By itself, the issue of the extricability of the aesthetic element provides an additional barrier to protection for some creators, as she illustrates through the “Butterfly Top” example (at 5:43), where the unique design element IS the shape of the top.
Meghan’s video reminded me of earlier this year, when my friend, a ceramic artist who owns a small craft business, made a post about a YouTuber who had been posting videos teaching viewers how to replicate what were clearly items in my friend’s unique pottery design catalogue. (“clearly” because several of her unique designs were replicated almost identically). Meghan focuses on the gap that exists between categorical distinctions of ‘works’ in copyright law in her video. Let’s assume my friend does sell more than 50 articles of each design. What I want to discuss is: even if s. 64(2) of the Copyright Act is reformed to provide small-business craft creators more protection, how would their works be protected? From whom?
First of all:
Do we want to stop people from making their own versions of popular (or even less popular) designs? In terms of adhering to the Copyright Act’s purpose of “balancing the public interest in the encouragement and dissemination of works of the art and intellect…and obtaining a just reward for the creator”, (SCC in Theberge) I would say no. and s.29.22(1) of the Copyright Act reflects this:
Reproduction for private purposes
29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if…
(e) the reproduction is used only for the individual’s private purposes.
Is it infringement to encourage others to emulate the original artist?
What if the person copying the work isn’t selling the products they make? does it count as infringement if a craft-fluencer makes a product for their own personal use, and documents it in a do it yourself (DIY) video teaching others to do the same?
But strictly speaking, this isn’t only what DIY Youtubers are doing. Craft-fluencers aren’t replicating a product for their personal use, though this is certainly what they would argue if someone sued them. Though the premise of the instructional video will often be phrased in such was as “I made this at home for myself – here’s how you can too!”, the goal of making the video is for profit, through video-ad sponsorship.
Regarding secondary infringement, section 27(2) of the Copyright Act provides that:
Secondary infringement
It is an infringement of copyright for any person to:
a) Sell or rent out,
b) Distribute to such extent as to affect prejudicially the owner of the copyright,
c) By way of trade distribute, expose, or offer for sale or rental, or exhibit in public….
…a copy of a work…that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.
However, again the issue here is that DIY Youtubers are not selling, distributing, or by way of trade, “distributing copies” of infringing works. What they are doing is providing the means for others to reproduce for personal use. S. 27(2) can’t apply to protect the creator’s economic rights here.
Moral rights
Section 14.1 (1) of the Copyright act states that:
“The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.”
If the DIY Youtuber is good at their job, let’s assume that there is no “distortion, mutilation or other modification of the work” (s. 28.2(2)) sufficient to prejudice the creator and so infringe their right to integrity under s. 28.2, and that what we’re concerned with here is the creator’s association rights. In my friend’s case, the DIY-Youtuber didn’t attribute the design to her – it was left unsaid, with an implication that it was her independent creation. In this case, it seems like my friend is due some remedy pursuant to 34(1), which applies equally to moral rights infringements.
The question the lawyers care about: Remedies, but I also have no concrete answers.
Under s.34(1), copyright and moral rights owners are entitled to injunctive/compensatory/disgorgement relief from the infringing party. What damages? Damages from loss of potential sales, presumably. But how do you show this? And is this addressed by the inevitable argument that none of these viewers were actual potential customers? Injunctive relief and/or an accounting of profits might be a better answer.
But what if the craft-fluencer does the same thing, but gives attribution, or it’s obvious, like some of the examples in Meghan’s video? Is there still infringement in some other way? If so, are any damages balanced by the increased visibility the DIY defendant will argue they gave the creator?
More questions than answers, but questions for next time.
Check out my friend’s pottery catalogue at https://pitonpottery.ca/pages/about-us and consider supporting a local artist.
Communications Law