Looking at Francis, Day & Hunter Ltd v Twentieth Century Fox Corp Ltd [Francis] made me think of a few artists who could possibly challenge the general rule that there is no separate copyright in the title of the work, or rather, satisfy the exception. The quote regarding the exception to the rule:
…provided that [the title] is original and distinctive, whatever these words may connote. When that definition is read with s. 3, the result is that to copy the title constitutes infringement only when what is copied is a substantial part of the work (Francis).
There are likely many artworks where titles could be considered “original and distinctive” and/or a “substantial part” of the work. I am curious as to whether copying these titles (under Canadian law) would be infringement?
Examples:
Artist, Davina Semo
SHE WAS STILL LOOKING AROUND LIKE SHE EXPECTED SOMEONE TO APPEAR AND HELP HER 2018 Sculpture Acrylic mirror, plywood, assorted ball bearings, hardware, stainless steel
Many of Semo’s older works, like SHE WAS STILL LOOKING AROUND LIKE SHE EXPECTED SOMEONE TO APPEAR AND HELP HER, 2018, have similarly long titles which convey a message that either complements or contrasts the tangible object. I think that it is safe to characterize her titles as original and distinctive. However, would copying her title be copying a substantial part of her work?
Or, another angle: Could the titles of her works qualify as literary works in themselves? This title has 20 syllables. A haiku has 17 syllables. Does it make sense that a poetic title is not copyrightable when a short poem is? In Exxon Corp v Exxon Insurance Consultants International Ltd, the court refused to copyright a title as a separate literary work. However, there, the title was a single word, “Exxon.” Here, the title is fourteen words, perhaps beyond the “de minimus” threshold.
(The late) Artist, Lawrence Weiner.
Link to “A WALL PITTED BY A SINGLE AIR RIFLE SHOT“, 1969
Link to MOVED FROM UP FRONT, 1970
(MOMA is very serious about making it technically impossible to embed these links.)
Most of Weiner’s works have titles synonymous with their visual representation, which consist of the title printed directly on a wall, usually in large block letters. It seems safe to assume that there is copyright in the visual representation of the words, which combines the title and the design. However, what about the title without the design? His titles are arguably a substantial part of the work. According to 20th Century Art History, the consensus would be that his titles are original and distinctive. However, would they be original and distinctive enough for the Supreme Court of Canada? If the current copyright holder of these works could not exert copyright over these titles, a company (perhaps like the highly disreputable Galerie d’Art du Petit Champlain) could potentially exploit that. What would stop an imitator from using his text, coming up with their own cute colours and fonts, and reprinting his words on knockoff tote bags, t-shirts, etc., and marketing them? This might affect the copyright holder’s ability to profit from similar items, such as those sold in museum gift shops.
Thoughts?
Communications Law