Kevin B Madison
Day 261 of a Year of Drawing 2014, Part Two. Work in Progress: Breakdowns started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. The composition on this one is proving to be a bit of a pain. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 261 of a Year of Drawing 2014, Part Two. Work in Progress: Breakdowns started on another illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. The composition on this one is proving to be a bit of a pain. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 261 of a Year of Drawing 2014. Another completed illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 261 of a Year of Drawing 2014. Another completed illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Comics and Copyrights, Part One

Comics and Copyrights Part One

Howdy All and Happy Friday!

Over the last few weeks, I have found myself answering a lot of questions about copyright at my local Drink and Draw event (my “day job” is practicing law and I have recently grown comfortable enough with the folks at D&D to share that dirty little secret).  Even with the amount of free legal resources online that discuss copyright, it seems like a lot of artists are not quite clear on what copyright is, how it comes into being, and what you can do with your copyrighted works.  

I never mind providing legal information to folks who need it (it is, in fact, my favorite part of being a lawyer) and, so, in the interest of hopefully reaching more artists who may have those same questions that my friends at Drink and Draw did, for this week, and for the next couple of weeks, I figured that I would tackle the issue of copyright, as it relates to the work of cartoonists, comic artists, and illustrators.

The Obligatory Caveat

Before delving into the issue of copyright, I need to get an important disclaimer out of the way. 

The discussion that follows is intended to provide information only and should not be taken, or relied upon, as legal advice of any kind or in any form.  If you have specific questions or concerns relating to copyright, or any other legal issue, I would encourage you to either retain and instruct legal counsel, or avail yourself the legal resources that are available online or in your local area (many of which are free and can be found with Google searches). 

To be clear, by providing the following information, I am not providing you with any specific legal advice as it pertains to your specific circumstances, and I am not your barrister, solicitor, lawyer, and/or attorney (though I am sure you are a lovely person).

Finally, I should note that I am a Canadian lawyer and, as such, the information I will be providing in the coming weeks will be specifically related to how copyright is recognized and protected in Canada.  Much of this will be applicable to US or UK law as well, but it should not be relied upon as gospel for how copyrights are recognized and protected in those jurisdictions (for instance, the registration of a copyright in the US gives you access to certain court costs that would otherwise be unavailable to you, while in Canada you are not required to register a copyright in order to get costs at trial).  

Ok, with that bit of tuchus-concealment out of the way, let’s talk about copyright.

What is a Copyright?

Copyright is a form of intellectual property that is both recognized and protected by statue in most countries.  It is defined as intellectual “property” because the copyright itself, like other forms of property, is owned by a person or persons during the term of copyright.  It is distinguished from other property because it is not a tangible form of property but, instead, a product of the mind, making it “intellectual” property. 

Like most other forms of property, a copyright can be sold, gifted or transferred, in whole or in part, but, unlike other forms of property, copyright has certain, unique restrictions that require extra consideration when ownership in a copyright is assigned or licensed.

In Canada, copyright is governed by the Copyright Act and it is best understood as a collection or ‘bundle’ of rights, rather than a single right itself.  This ‘bundle’ of rights will be discussed in detail in a later blog entry. 

While copyright is a product of the mind, it only exists when vested in an original creative ‘work.’  In Canada, copyright does not extend to the realm of ideas and, as such, the ideas embodied in a work do not, themselves, enjoy protection under the Copyright Act.  Instead, it is the expression of an idea or ideas which is protected, and this expression is where the copyright to a work vests. 

Before delving into the technicalities associated with copyright, it should be noted that a copyright owner does not need to register their work in order to obtain copyright protection.  There are additional benefits that you gain by registering your copyright, but so long as the following criteria are met, copyright will vest in a work, whether that copyright is registered or not.

The Copyright Act provides that, in order for copyright to vest in a work, three criteria must be met, which are:

1) The author or ‘maker’ of the work (the differences between these are discussed below), at the date the work was made, must have been a citizen of a country which is party to the Berne Convention, a Universal Copyright Convention Country or a World Trade Organization member, which, in practice, includes most countries.

2) The work must be ‘original’, which has been defined by the Supreme Court of Canada to mean “it must be more than a mere copy of another work,” but “it need not be creative, in the sense of being novel or unique.”   What is required for copyright to vest is that “in the expression of an idea [there] is an exercise of skill and judgment.”   The Supreme Court has defined ‘skill’ as “the use of one’s knowledge, developed aptitude or practised ability in producing the work” and ‘judgment’ as “the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.”  In practice, most drawings would meet the criteria of ‘original’ because they are the result of the artist’s exercise of skill and judgment.

3) The work must be ‘fixed’ in order for copyright protection to extended to the work.  Broadly, this means that “in order for copyright to subsist in a work it must be expressed in some material form capable of identification, and having a more or less permanent character.”   This is an easy criteria for drawings or illustrations to meet, as even the most transitory works (drawings in sand or ice carvings) are, arguably, sufficiently ‘fixed’ so as to attract copyright protection.

As long as these criteria are satisfied, the creation of any such drawings or illustrations also creates an independent copyright which persists, even if the work is later incorporated into subsequent works that, themselves, enjoy copyright (known as derivative works, which are discussed in greater detail next week).

So, that should give you a brief look at the requirements for a copyright in Canada.  Next week we will turn to look at the exciting world of derivative works, where you’ll get the whole seat, but you’ll only need the edge!

As always, thank you for taking the time to read my thoughts and I hope to see you back in seven days!

Until then, I have some drawing to do.

Yours very truly,

Kevin B. Madison

#yearofdrawing #comics #comicstrip #copyright #comicscopyright #comicsandcopyright #copyrights

 

Day 260 of a Year of Drawing 2014. Work in Progress: Inks done and shading started on an illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 260 of a Year of Drawing 2014. Work in Progress: Inks done and shading started on an illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 259 of a Year of Drawing 2014. Work in Progress: Pencils done on the next illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 259 of a Year of Drawing 2014. Work in Progress: Pencils done on the next illustration done to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 258 of a Year of Drawing 2014. Yet another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 258 of a Year of Drawing 2014. Yet another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part Three. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part Three. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part Two. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part Two. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part One. An updated version of an illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 257 of a Year of Drawing 2014, Part One. An updated version of an illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 256 of a Year of Drawing 2014, Part Two. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate

Day 256 of a Year of Drawing 2014, Part Two. Another illustration to accompany Chadwick Ginther’s short story, A Simple Twist of Fate. #yearofdrawing #thunderroadtrip #thunderroad #chadwickginther #asimpletwistoffate