A property developer in New York City tears down a building which is abundantly illustrated with graffiti – and is ordered by a court to pay nearly $7 million in damages for infringing the rights of the graffiti artists under the Visual Artists Rights Act (VARA).¹ On the opposite coast, a museum in Los Angeles hangs 88 tote bags with artistic works printed on them in a courtyard, and then discards them when the exhibition is over – prompting the artist who created the tote bags to sue under VARA for damages which could range from $66,000 to $2.6 million.²

At least in the United States, destroying a work of art looks like it can carry a potentially hefty price tag. Does the same hold true in Canada?

Before we look at how Canadian copyright law handles destruction of artwork, let’s briefly review how the matter is addressed under US law.³ VARA was introduced in 1990⁴ and provides that certain creators – those who create a “work of visual art” – have certain rights with respect to that work of visual art. Canadians would recognize those rights as quintessential “moral rights” (though VARA does not use that term). The rights accorded under VARA include a right to “prevent any destruction of a work of recognized stature”.⁵ So, not all works of visual art can give rise to a claim if they are destroyed, only those works that have achieved “recognized stature” – a test which is assessed by courts by looking at the public profile of the work, its reception and acknowledgement by other artists, by institutions and by buyers.

Thus, under the US Copyright Act, at least, it seems straightforward to conclude that an artist who creates a work of visual art that achieves a “recognized stature” has a right to prevent the destruction of that work (and to claim damages if those works are, in fact, destroyed). What about in Canada?

The Copyright Act (Canada) provides authors of works with moral rights, and stipulates that those moral rights include a right “to the integrity of the work”,⁶ and that such right is infringed when a work is, “to the prejudice of its author’s … honour or reputation … distorted, mutilated or otherwise modified”.⁷ That seems promising, but…

Some Canadian copyright lawyers will have heard what seems almost to qualify as a Canadian copyright urban legend: there was once a case where a court held that destroying a work of art did not amount to an infringement of moral rights – indeed, in that case, the defendant literally dumped sculptures in the nearest river, and still wasn’t held to have infringed the artist’s moral rights.

There’s good news and bad news about that story. The good news is that the story is not an urban legend – the case does in fact exist. The bad news is that the case should not be viewed as authority for the proposition that destroying a work of art does not amount to an infringement of moral rights.

The sculptures-dumped-in-the-river case is Gnass et al v. La Cité d'Alma, an unreported decision of the Québec Court of Appeal from 1977.⁸ As described by Professor David Vaver, sculptures created by the plaintiffs were located on public land in a municipality which had commissioned the sculptures but then allowed them to deteriorate and be vandalized; at least one of the sculptures had been removed by city workers and dumped into a river, where it was demolished by the combined effects of the rushing water and rock shoals.⁹ The artists sued for infringement of their moral rights, but the trial court decided against the claim, a result upheld by the Court of Appeal.¹⁰

That seems fairly straightforward – so why should Gnass not be relied on with too much enthusiasm? Because it was decided under a previous, more restricted, moral rights regime. At the time of the Gnass decision, moral rights in Canada were addressed in what was then Section 12(7) of the Copyright Act (Canada), which stated that authors had “… the right to restrain any distortion, mutilation or other modification of [their] work that would be prejudicial to [the author’s] honour or reputation”. In other words, authors had a right to prevent distortion, mutilation or modification – i.e., they could obtain an injunction – but they did not have a statutory right to damages if distortion, mutilation or modification had already occurred. In Gnass, the plaintiffs had tried to sue for damages, but were unsuccessful because they had no legally recognized right to receive damages.¹¹ Mr. Gnass was suing, in other words, for a remedy that, in the interpretation of the provision favoured by the court, was simply not available.

In the years since Gnass was decided, the moral rights regime in Canada has been dramatically reformed. Most saliently, the remedies available for moral rights infringement are now as broad as those available for copyright infringement: per Section 34(2) of the Act, when moral rights have been infringed, a court may grant “all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right”. The constraints on the remedies which were in place at the time of the Gnass case, and which seem to have dictated the result, are no longer operative.

So, could an author successfully sue today in Canada on the basis that their work had been “destroyed”? There doesn’t seem to be an obvious impediment to such a claim. While “destroyed” is not included in the moral rights menu of “distorted, mutilated or otherwise modified”, it seems plausible to argue that “destruction” is really just an example of “mutilation” in extremis; put differently, every destruction necessarily begins as a mutilation. Even if that is not convincing, then surely the destruction of a work falls within the scope of “otherwise modified”. In two recent cases involving the same defendant, the Federal Court of Canada found that stretching photographic prints and putting them in inferior frames breached the artists’ moral rights by distorting, mutilating and otherwise modifying the works to prejudice the plaintiff photographers’ honour and reputation. In both cases, the Court awarded $10,000 as damages for moral rights,¹² considerably less than the US cases cited above, but the Court also awarded punitive damages to deter the defendant’s conduct.

One potential counter-argument to the existence of a right to prevent destruction under Canadian copyright law is to compare the wording of the Canadian moral rights provisions with those of VARA: in the US, VARA provides that creators of works of visual art have both a right to prevent distortion/mutilation/modification and a right to prevent destruction – if destruction was already included in the scope of “distortion/mutilation/modification”, then there would be no need to set it out as a separate right, and, since Canada’s Copyright Act only mentions distortion/mutilation/modification, then the logical conclusion is that Canada does not protect against destruction. But we should be careful about analogizing too quickly. The Supreme Court of Canada has repeatedly cautioned against too quickly transferring U.S. copyright law conclusions to the Canadian context given the “key differences in the copyright concepts in Canadian and American copyright legislation”.¹³ The Canadian conception of moral rights, in its current iteration, is significantly more capacious than the US version, drawing substantively from Canada’s bijural copyright heritage: it applies to all types of works (and even some performances), covers the “association” of a work with a product, service, cause or institution which prejudices the honour or reputation of the author, and is not subject to limitation by qualifiers such as “recognized stature”. So, while the position in Canada is not entirely clear, there is good reason to think that artists in Canada have solid ground from which to launch a claim for moral rights infringement if their work is destroyed. At the very least, on the path to the piece’s destruction, there likely would have been a distortion/mutilation/modification.

It should also be noted that the wording of Canada’s Copyright Act imposes some other limitations on the scope of the moral right, though the limitations will not be relevant in all situations. First, infringement of the right of integrity is limited to situations where the honour or reputation of the author has been prejudiced (which is determined by reference both to the subjective feelings of the author, and by reference to objective evidence, such as the views of gallerists, peers, critics, and historians). But, notably, for certain types of works, the prejudice is deemed to have occurred: Section 28.2(2) provides that a distortion, mutilation or other modification is automatically prejudicial when the affected work is a “painting, sculpture or engraving”.¹⁴ Finally, Section 28.2(3) provides that merely changing (i) the location of a work, or (ii) the physical means by which a work is exposed, or (iii) the physical structure containing a work, does not by that act alone constitute an infringing distortion, mutilation or other modification. But the embedded qualifier there is important: it just means that not all such changes will be infringing – but some might be. Moving a painting from the west wall of the lobby to the east wall of the lobby is probably not going to constitute an infringing distortion/mutilation/modification – but removing the painting from the lobby and hanging it above the toilet in the washroom could very well be problematic.

Similarly, it may also be a moral rights infringement to use a work in association with a product, service, cause or institution without the author’s consent if doing so prejudices the author’s honour or reputation. Accordingly, consider whether moving the work to a certain location may constitute an infringement of moral rights. A private collector who moves the painting of a chinchilla from his living room to the front window of his furrier shop may be found liable for moral rights infringement if the painter is an animal rights activist.

If you own or have control over the sole copy of copyright-protected work (e.g., you own the original and sole sculpture, painting, manuscript, etc.), and have plans to modify or even destroy it, consider these questions:

• What kind of work is it? Paintings, sculptures and engravings need to be treated with special care to avoid tripping over the “deemed prejudicial” provision.
• What are you planning on doing to the work? Could your activities be sheltered within the provision which allows for changing locations, means of display, etc.?
• Might you want to give the author the opportunity to obtain the work, rather than destroy it? This would go a long way to mitigating any risk of a moral rights-based claim.

If you find yourself in a situation where you need advice on dealing with artworks in Canada, consider reaching out to the Dentons Technology, New Media and IP Litigation  group, Intellectual Property and Technology group and Media, Entertainment and Sports in Canada group. Our professionals are experienced in dealing with transactional and contentious copyright matters.

1. Castillo v. G&M Realty L.P., 18‐498‐cv (L) (2nd Cir.)(February 20, 2020). ↩
2. See https://copyrightlately.com/artist-vara-trashed-tote-bags/.↩
3. Some US states also have state-level legislation which provides protection to artist (e.g., California’s Art Preservation Act), but we will limit this discussion to U.S. federal protections contained in the US copyright legislation.↩
4. VARA is enacted as 17 US Code § 106A.↩
5. The other rights accorded by VARA are: to claim authorship of a work of visual art; to prevent the use of the artist’s name in connection with a work of visual art that the artist did not create; to prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to the artist’s honour or reputation, and to prevent the use of the artist’s name in connection with a work which has been so distorted, mutilated or modified.↩
6. Section 14.1(1).↩
7. Section 28.2(1).↩
8. (1977) 09-000032-745 (Q.C.A.).↩
9. David Vaver, "Snow v. the Eaton Centre: Wreaths on Sculpture Prove Accolade for Artists' Moral Rights" (1983) 8:1 Can Bus LJ 81.↩
10. For a detailed objection to the result, see É. Colas, "Le droit moral de l'artiste sur son oeuvre" (1981) 59 Can. Bar Rev. 521.↩
11. Similarly, in the famed case involving red ribbons being placed around the necks of the geese that made up Michael Snow’s sculpture Flight Stop (Snow v Eaton Centre Ltd (1982), 70 CPR (2d) 105), while Snow was successful in his claim for moral rights infringement, his only remedy was an injunction ordering the Eaton Centre to remove the ribbons, but he was not awarded damages for the infringement.↩
12. Collett v Northland Art Company Canada Inc., 2018 FC 269 at paras 67-68 [Collett] and Lorenz v Northland Art Company Canada Inc et al, T-376-17 cited in Collett at paras 64, 67-68. The defendants also ascribed a false name as the author of the works at issue.↩
13. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para. 22.↩
14. That wording itself raises some definitional issues: “painting” is not a defined term in the Act, but is included in the defined term “artistic work” (as is the term sculpture) – meaning, presumably, that other types of “artistic works” (such as “drawings, maps, charts, plans, photographs, engravings, … works of artistic craftsmanship, architectural works, and compilations of artistic works”) do not benefit from the deemed prejudice in Section 28.2(2).↩