Jack Shadbolt: A case study in copyright culpability.

Recently while writing an article for publication about the installation of B.C. artist Jack Shadbolt’s painting Tree of Life at UBC Okanagan, I was obliged to secure copyright approval to reproduce an image of the painting to be included in the article.

Effective September 23rd 2011, copyright for works of art created by Jack Shadbolt (1909 -1998) was transferred to Simon Fraser University from the Estate of his late wife Doris Shadbolt. The copyright transfer did not include (a) those works for which a copyright had previously been granted by Jack Shadbolt during his lifetime or (b) those works for which a copyright had previously been granted by Jack Shadbolt’s estate or executors. Consequently copyright release from SFU was required for exhibition or reproduction for all works of art by Jack Shadbolt unless they fell into categories (a) or (b) above.

To facilitate copyright release I contacted Christina Hedlund, Collections Manager, SFU Galleries, and my request for release was approved, in this case without charge. In discussions with Christina I inquired as to what SFU’s policy was on the application of copyright, held by SFU of Shadbolt’s works. I was informed that the university did not have the resources, financial and otherwise; to monitor reproductive use of Shadbolt’s images or apply copyright law and as a result copyright royalties essentially went uncollected.

According to the Canadian Artists Representation Copyright Collective ( CARCC)
‘artists may exploit different uses in order to generate income and to finance their future artistic production. This income is provided by the payment of Copyright royalties. These royalties stem from the permission granted by an artist to a user (museum, art center, publisher, producer, etc.). This permission is called a “license” and the granting of a license is done by signing a contract which confers certain rights to the user in return of a compensation which is usually, but not always, monetary’1. CARCC also mentions that ‘Copyright is a private property right, similar to that which pertains to a building or land, except that this right applies to the result of a creative intellectual effort, like a sculpture, a painting, a theatre costume, a blown glass vase, a play, a novel, a symphony, a film etc …’2 There are several options available to manage copyright income, the creator can manage their rights themselves, or the creator, as a member of a professional association can accept that his/her works are covered by a collective agreement between the professional association and potential user and finally the creator may have his/her copyright negotiated and managed on his/her behalf by an agent or a copyright management society.

Under article 41.23 (1) General provisions of the Copyright Act, the copyright holder is not obliged to protect and enforce his right and application of his financial interest is therefore discretionary. ‘Subject to this section, the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act.’3

It would appear then that SFU, as the holder of copyright, has no legal obligation to collect copyright royalties of Shadbolt’s works even though the Copyright Act gives them the legal authority to do so. The Act essentially sanctions the copyright holder, SFU, to exploit a legitimate revenue source and is it not incumbent of SFU to manage, cultivate and maturate that revenue source? The ethical implications of a generous financial and artistic gift from the Estate of Doris Shadbolt, left unexploited, speaks I think, to the indifference to such generosity, on the part of SFU. One can only assume that Doris Shadbolt’s magnanimity was partly predicated on the fact that her husband’s artistic output would be protected by the collection of copyright royalties. Her gift in essence consisted not only of her husband’s creative output but also the financial means to maintain it, a concept which appears to have escaped the notice of the administration at SFU.

Reproduction of images of Shadbolt’s paintings is rampant in the resale art secondary market, especially in printed auction catalogues and on-line digital catalogues. The Heffel Auction House prints several thousand auction catalogues for each of their two live auctions and each catalogue may contain several reproductions of different Shadbolt works offered for sale. Their monthly on-line auctions may also contain several images of Shadbolt works. Other auction houses also produce both on-line and printed copies of auction catalogues which may also contain reproductions of Shadbolt images. One would think that SFU, as holder of Shadbolt copyright would be vigoursly enforcing its legal right to collect copyright royalties, however this appears not to be the case.

How do auction houses circumvent having to pay copyright royalties on reproducing Shadbolt’s works?
The Copyright Act does permit exceptions to copyright infringement under what is known as Fair Dealing where for the purposes of other than a commercial enterprise such as research, private study, education, parody or satire, such activities do not infringe copyright.4 Criticism and news reporting also do not infringe on copyright, however I don’t think one could argue successfully that auction houses do not infringe copyright under Fair Dealing. It appears that the Heffel Auction House under its Auction Terms and Conditions of Business5 lists several conditions under which it, the auction house, protects itself from copyright infringement, as listed below.
Description of Lot. 6.e.
The Auction House makes no representations or warranties to the Buyer that the Buyer of a Lot will acquire any copyright or other reproduction right in any purchased Lot.
Warranties and Indemnities.2.a.
The Consignor warrants to the Auction House and to the Buyer that the Consignor has and shall be able to deliver unencumbered title to the Lot, free and clear of all claims; (including claims of copyright infringement)
11. Photographs and Illustrations. Preamble. a., b.
In consideration of the Auction House’s services to the Consignor, the Consignor hereby warrants and represents to the Auction House that it has the right to grant to the Auction House, and the Consignor does hereby grant to the Auction House, a non-exclusive, perpetual, fully paid-up, royalty free and non-revocable right and permission to:
a. reproduce (by illustration, photograph, electronic reproduction, or any other form or medium whether presently known or hereinafter devised) any work within any Lot given to the Auction House for sale by the Consignor; and
b. use and publish such illustration, photograph or other reproduction in connection with the public exhibition, promotion and sale of the Lot in question and otherwise in connection with the operation of the Auction House’s business, including without limitation by including the illustration, photograph or other reproduction in promotional catalogues, compilations, the Auction House’s Art Index, and other publications and materials distributed to the public, and by communicating the illustration, photograph or other reproduction to the public by telecommunication via an Internet website operated by or affiliated with the Auction House (“Permission”). Moreover, the Consignor makes the same warranty and representation and grants the same Permission to the Auction House in respect of any illustrations, photographs or other reproductions of any work provided to the Auction House by the Consignor.
General Conditions.D.
8. The copyright for all illustrations and written matter relating to the Lots shall be and will remain at all times the absolute property of the Auction House and shall not, without the prior written consent of the Auction House, be used by any other person.

So it appears that when the consignor consigns a work, the copyright does not accompany the sale, the consignor warrants that the lot is free from all encumbrances (including copyright royalties), reproduction rights are given to Heffel and copyright of all illustrations becomes the property of the auction house. In other words Heffel avoids the issue of copyright infringement by essentially placing the legal responsibility for compliance with the Copyright Act on the consignor. Most consignors of Shadbolt works would, other than SFU, not hold copyright and therefore not have the right to transfer copyright for illustrations to Heffel and would therefore be doing something illegal.
This raises issues regarding the possibility of legal action by SFU, as copyright holder, under the Copyright Act, against consignors who do not hold copyright to artistic works by Jack Shadbolt.

I think SFU Galleries’ apparent inaction in enforcing the collection of Shadbolt copyright royalties is indicative of a general malaise which permeates the Canadian art world and tends to encourage, at best an indifference to and at worst the perceived irrelevance of artist output. Inaction is tantamount to acquiescence. I would think that SFU Galleries as the repository of some of Shadbolt’s best works should show leadership in this area and vigoursley defend the rights of Canadian artists.If SFU is not interested in actively collecting Shadbolt copyright royalties they may want to take advantage of third party copyright management society as mentioned above.

Perhaps the Copyright Act should be changed to include the enforcement and collection of copyright royalty fees as mandatory.

1 http://www.carcc.ca/en/Droits%20d’auteur%20101 Accessed Sept 11th 2017.
2 Ibid.
3 http://laws-lois.justice.gc.ca/eng/acts/C-42/page-21.html#h-55 Accessed Sept 11th 2017.
4 http://laws-lois.justice.gc.ca/eng/acts/C-42/page-9.html#h-26 Accessed Sept 11th 2017.
5 http://www.heffel.com/auction/Terms_Defined_E.aspx Accessed Sept 11th 2017.