Maryna Polataiko & May Cheng
Sometimes by choice, but sometimes by fate, artists cede control over their creations. Canadian artist Yarek Waszul lost control over his art when it was memed by a soon-to-be former Republican congressman known for promoting white supremacy.
In 2013, Waszul drew an image for the New York Times depicting two figures fighting, each made up of Republican and Democrat states. According to the Toronto-based artist, the illustration was meant to “depict and caution against hostility and vitriol of divisive political discourse.”
In 2019, the creative graphic was repurposed by Iowa congressman Steve King, who posted the image on Facebook, adding the caption: “Folks keep talking about another civil war.” “One side has about 8 trillion bullets, while the other side doesn’t know which bathroom to use.” Above the illustration, he wrote, “Wonder who would win….”. The inflammatory and transphobic meme subsequently went viral. In an interview with the Washington Post, Waszul said that “[s]eeing one’s work reproduced without consent is a fear of any illustrator, but seeing it attached to such a callous message is a real nightmare.” Waszul’s legal counsel subsequently sent King a letter demanding that he apologize and retract the image, claiming that King violated his moral rights.
In this article, we observe the heightened importance of moral rights in the Internet era, as illustrated by Waszul’s predicament. We examine moral rights in Canada, where plaintiffs must provide both subjective and objective evidence of reputational harm when bringing a moral rights claim. Noting that the objective standard may sometimes be difficult to meet for plaintiffs, we suggest that courts adapt a more flexible approach that takes subjective evidence into greater consideration.
Enhancing access to moral rights is important because Waszul’s story is not unique. The mother of Success Kid was similarly appalled when King used her son’s image for a fundraising effort: “The thought of anyone thinking we gave permission or, you know, associating us with him is really kind of sickening.” And then there’s Matt Furie, whose innocuous Boy’s Club character named Pepe the Frog was repurposed by the ‘alt-right’ as a hate symbol. Furie now bears the complex burden of mourning the innocence of a cartoon frog.
The Internet offers creators an unprecedented ability to share their works with the world. Enrichment of the public domain, open access, and creative dialogue are all promises of the Internet as a space for expressive freedom. But with this opportunity comes a unique risk of losing control over one’s creations at the click of a mouse.
The moral right of integrity can provide an antidote to this vulnerability, protecting those whose creations, reputations, and livelihoods have suffered due to the distortion of their works or through the association of their works with harmful causes. Canada’s Copyright Act recognizes a right to the integrity of an author’s work, giving rise to a claim for the violation of moral rights where a party harms an artist’s reputation through distortion, mutilation or modification, or by using the work in association with a product, service, cause or institution without the author’s consent.
While a comparative exercise between Canada and the United States is beyond the scope of this paper, it bears noting that both countries recognize moral rights as signatories of the Berne Convention. Scholars have observed that the United states offers significantly lesser protections for moral rights than other Berne signatories. In the United States, moral rights are protected through federal and state legislation, as well as the common law. Like Canada’s Copyright Act, the federal Visual Artists Rights Act (VARA) seeks to protect both attribution and integrity rights. However, VARA has been criticized for being too limited in its scope—for example, for only protecting works falling under the restrictive definition of ‘visual arts.’ Indeed, Canada has a more straightforward moral rights framework with fewer limitations. While there is substantial scholarship studying the inadequacies of VARA and the Digital Millennium Copyright Act in the digital context, less attention appears to have been given to the Internet and moral rights in Canada.
In contrast to the main substance of Canada’s copyright regime, which finds its history in English law, moral rights are the offspring of French civil law. While the English tradition conceives of “artistic and literary works essentially as articles of commerce,” French law considers the “artist’s œuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.”
Where infringement of moral rights is claimed, an artist may be granted remedies such as an injunction (ordering a party to stop their infringing activity), damages (financial compensation), an accounting of profits (handing over the money made from the infringing activity), and delivery up (returning or destroying the infringing content).
For artists asserting a violation of moral rights in Canada, the challenge lies in the need to demonstrate to the Court that the modification or association is prejudicial to their reputation, through expert or public opinion evidence. As the Federal Court of Canada has explained, the “concept of moral rights has not only a highly subjective aspect, which in practice only the author can prove, but an objective one as well.” In other words, courts will consider an artist’s opinion on how their reputation has been harmed, but they will also need objective evidence of reputational harm to conclude that moral rights have been violated. It should be noted that, since 1988, prejudice is ‘deemed’ to have occurred for paintings, sculptures, and engravings following distortion, mutilation, or modification.[A1] However, other types of works do not benefit from this exception.
In Canada’s most famous moral rights case, internationally recognized artist Michael Snow (known as “one of the most celebrated figures in contemporary art”) took issue with the Eaton Centre tying festive red ribbons on to the necks of the life-like geese in his 1979 “Flight Stop” installation. Arguing that his moral rights had been violated, he alleged that the Eaton Centre’s additions made his sculpture “look ridiculous” and were tantamount to “dangling earrings from the Venus de Milo.” The Court accepted Snow’s position, observing that an artist’s subjective opinion should be given weight “so long as it is reasonably arrived at.” Snow also called evidence from artists and industry experts, who supported his claim. The Court agreed and ordered the Toronto mall to remove the ribbons. However, following the Snow decision, courts started placing more emphasis on objective evidence. In one case, a court held that while creators may be personally “shocked and distressed” by modifications to their work, they must show that their reputation has actually suffered.
Evidence provided by claimants must also be sufficiently credible and persuasive. In a recent Ontario Superior Court of Justice decision, Tommy Wiseau—the infamous director of the universally ridiculed movie The Room—claimed that a Canadian documentary about the eccentricities of his film infringed his moral rights. Titled Room Full of Spoons, the documentary examined the creation of The Room (widely panned as the “worst movie ever made”) and its cult following. Much to Wiseau’s chagrin, the documentary also looked into his mysterious origins, allegations of fraud made against him, and rumours that he had not actually directed most of the movie.
Room Full of Spoons may not have been a hagiography, but it did not distort, mutilate, or modify the work to the prejudice of Wiseau’s reputation. The creator of the “Citizen Kane of bad movies” made the tenuous argument that, because segments from the movie used in the documentary came from a Blu-ray disc rather than his master copy, the footage was low quality, and thus an distortion injurious to his reputation. However, the Court held that he failed to provide evidence showing how the allegedly lower quality footage distorted his work in a manner causing reputational harm. Anyone who’s seen The Room will know that viewers do not attend its midnight screenings for high resolution imagery.
Wiseau also claimed that his reputation was harmed by being associated with Room Full of Spoons, calling it “reprehensible (both artistically and personally).” According to his witnesses at trial, the documentary was a “tabloid-style exposé” and a “hit piece.” The Court was not convinced, finding that the documentary being “negative in tone” did not breach Wiseau’s moral rights. Room Full of Spoons did not distort The Room, nor did it suggest that Wiseau had endorsed the documentary. The Court went so far as to find that even if the evidence showed that Wiseau was associated with Room Full of Spoons, it did not follow that this would hurt his reputation: “To the extent the documentary portrays Wiseau as someone who made a terrible movie, there is nothing new about that.” Ouch.
Wiseau’s case demonstrates that not all moral rights claims are deserving of the Court’s intervention. The Supreme Court of Canada has repeatedly emphasized that our copyright regime must strike a delicate balance between creators’ rights and users’ rights. A healthy copyright regime ensures that the protection of artists’ rights does not come at the expense of the public domain. Requiring convincing objective evidence of reputational harm thus restrains artists from abusing their rights to stifle artistic expression (in Wiseau’s case, criticism) and allows for creative dialogue.
Nevertheless, the balance between these competing rights may pose a challenge for potential litigants. As scholars like Professor David Vaver have observed, while bridling “dubious claims,” these stringent evidentiary requirements may sometimes function as a hurdle to deserving and sympathetic complainants. In a recent class action, authors of obituaries and photos sued a website called Afterlife for violating their moral rights. Without permission, Afterlife monetized their obituaries by posting advertisements for flowers and virtual candles next to them. One plaintiff, who wrote an obituary for her father, “described her outrage and mortification that others would think she sought to profit from her father’s death.” For some obituaries, “inconsistent information was added, for example, inaccurate details about the deceased or options to order flowers where the family had specifically discouraged flowers.”
The plaintiffs invoked the Snow decision, in which the Court gave weight to Snow’s subjective views on his reputational harms, deeming them reasonable. However, the Court in the Afterlife decision noted that subsequent case law required objective evidence in addition to subjective evidence. While the Court found that the subjective element had been satisfied, the plaintiffs did not produce objective evidence showing harm to their honour or reputations. The Court thus held that no breach of moral rights had occurred.
As in Yarek Waszul’s case, unsavoury actors on the Internet appropriated copyrighted materials for purposes risking the creators’ honour and reputation. In light of this unfortunate outcome, courts should consider a more flexible approach that, when appropriate, gives more weight to creators’ subjective evidence, and applies a reasonableness standard to curb vexatious litigants like Wiseau. By making claims a little more accessible, artists whose works have been misappropriated and whose reputations have been harmed could seek greater protection against the vicissitudes of the online realm. Such a change could bring Canada’s moral rights law in line with the needs of the Internet era, and breathe new life into the French tradition of moral rights, which recognizes the foundational nexus between creators’ works and their dignity. After all, doesn’t Pepe the Frog deserve more respect?
Maryna Polataiko is a Canadian lawyer with experience in intellectual property and privacy law. She holds a BCL/JD from McGill University’s Faculty of Law, where she received the Bereskin & Parr Prize in Industrial and Intellectual Property. Her research interests include the intersection of law and technology. Reach her at firstname.lastname@example.org.
 Canadian Broadcasting Corporation (“CBC”), 2020. Iowa voters oust Rep. Steve King, known for incendiary comments about immigrants, white supremacy. [online] Available at: <https://www.cbc.ca/news/iowa-steve-king-1.5596173> [Accessed 10 August 2020].
 Reis Thebault , 2020. An artist is threatening to sue Steve King for his ‘civil war’ meme — unless King apologizes. Washington Post, [online] Available at: <https://www.washingtonpost.com/politics/2019/04/02/an-artist-is-suing-st… [Accessed 10 August 2020].
 Marsha Lederman, 2020. Canadian artist seeks apology, retraction from U.S. Congressman Steve King over ‘hijacked’ illustration. Globe and Mail, [online] Available at: <https://www.theglobeandmail.com/arts/art-and-architecture/article-canadi… [Accessed 10 August 2020].
 CNN Wire, 2020. Mom of internet star ‘Success Kid’ threatens to sue Iowa’s Steve King for using his meme in fundraising ad without permission. WGN 9, [online] Available at: <https://wgntv.com/news/mom-of-internet-star-success-kid-threatens-to-sue… [Accessed 10 August 2020].
 Anti-Defamation League. 2020. Pepe The Frog. [online] Available at: <https://www.adl.org/education/references/hate-symbols/pepe-the-frog> [Accessed 10 August 2020].
 David Ehrlich, 2020. ‘Feels Good Man’ Review: Pepe the Frog Creator Matt Furie Tries to Redeem Internet’s Most Racist Amphibian. IndieWire, [online] Available at: <https://www.indiewire.com/2020/01/pepe-the-frog-documentary-feels-good-m… [Accessed 11 August 2020]. David Ehrlich describes Feels Good Man, a documentary about Matt Furie and Pepe, as “a harrowingly modern fable about innocence lost.”
 Mira T. Sundara Rajan, 2002. Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture. International Review of Law, Computers & Technology, 16(2) at 195.
 Mira T. Sundara Rajan, Creative Commons: America’s Moral Rights, 21 Fordham Intell. Prop. Media & Ent. L.J. 905 (2011) at 946.
 Supra note 6: Ehrlich observes that “There’s only so much anyone in his position could’ve done, but Jones’ entertaining documentary also hints at how open-source ideation cuts both ways.” “If it’s true that nobody owns anything on the internet, that means nobody owns anything on the internet — not Matt Furie, and not the trolls who took Pepe away from him.” J. Carlos Fernàndez-Molina and Eduardo Peis, 2001. The Moral Rights of Authors in the Age of Digital Information. Journal of the American Society for Information Science and Technology, 52(2) observe at 109: “The survival of [moral paternity and integrity] rights is seriously endangered by the endless possibilities for information production, processing, and transmission in the digital environment.” See also supra note 7at 188, 190-1, in which the author discusses moral rights and artistic losses of control in the age of technology.
 Moral rights have been used in cases similar to those of Waszul. For example, David Vaver, 2011. Intellectual Property Law. 2nd ed. Toronto: Irwin Law writes that ABBA, the Swedish pop supergroup, “successfully complained about a far-right Danish political part’s use at rallies of a bowdlerized version of their hit song Mamma Mia” (at 211).
 Supra note 8at 911-4; John S. McKeown, Fox on Canadian Law of Copyright and Industrial, 4th ed. Toronto: Thomson/Carswell (online loose-leaf).
 Joseph M. Beck, Allison M. Scott & Katharine M. Sullivan, Moral Rights and Wrongs: Conflicts in the Digital World, 57 J. Copyright Soc’y U.S.A. 587 (2010) at 599-603.
 Nicoline A. van de Haterd, Vermeer v. Pollock: A Case for the Expansion of Moral Rights in the United States, 57 Duq. L. Rev. 145 (2019) at 154. See also Kristen Lingren., 2010. United States of America. In: G. Davies and K. Garnett, ed., Moral Rights. London: Sweet & Maxwell, pp. 857-954 for an in-depth discussion of laws dealing with moral rights in the United States.
 Ibid at 155.
 Ibid at 155-6, 160-66, 168. Nicoline A. van de Haterd also discusses the Digital Millenium Copyright Act’s relationship to attribution rights at 156-7, noting that its “scope of protection, if any, remains uncertain” at 164 and that it is “not effective” at 168.
 Lucille Ponte, M., Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of Copyright Dilution, 15 B.U. J. Sci. & Tech. L. 34 (2009). See also Mira T. Sundara Rajan at supra note 8for a discussion of moral rights and technology, wherein the author notes that “moral rights remain without substantial legal protection in the United States” at 909. J. Carlos Fernàndez-Molina and Eduardo Peis also note that VARA provides insufficient protection in their examination of moral rights in the information age at supra note 9. Jane C. Ginsburg, 2012. Moral Rights in the US: Still in Need of a Guardian Ad Litem*. Cardozo Arts & Ent. L.J., 30(73) observes the limits of moral rights in the U.S., focusing on the DMCA and the Lanham Act, and considers the potential of online contracts to protect moral rights. For a an analysis of how VARA and the DMCA can and cannot protect digital art within the art market, see: Kristina Mucinskas, Moral Rights and Digital Art: Revitalizing the Visual Artists’ Rights Act, 2005 U. Ill. J.L. Tech. & Pol’y 291 (2005).
 Nevertheless, existing Canadian scholarship on the issue has been enlightening. See for example, Margaret Ann Wilkinson and Natasha Gerolami, 2009. The Author as Agent of Information Policy: The Relationship between Economic and Moral Rights in Copyright. Government Information Quarterly, 26(2), in which the authors highlight the role of moral rights as protecting indicators of reliability and authority in the information age.
 Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at paras 12, 15.
 See supra note 10at 209. Section 34 of the Copyright Act.
 Prise De Parole Inc. v. Guérin, Éditeur Ltée,  F.C.J. No. 1583 at para 26.
 Maltz v. Witterick, 2016 FC 524 at para 49.
 Section 28.2(2) of the Copyright Act.
 Martha Langford, 2020. Michael Snow, Flight Stop, 1979. [online] Art Canada Institute - Institut de l’art canadien. Available at: <https://aci-iac.ca/art-books/michael-snow/key-works/flight-stop> [Accessed 10 August 2020].
 Snow v Eaton Centre Ltd. et al,  O.J. No. 3645 at para 6.
 Ibid at para 5.
 Ibid at para 6.
 Ibid at para 9.
 Supra note 10at 210-1. See also Thomson v. Afterlife Network Inc., 2019 FC 545 at paras 40-44.
 Prise De Parole Inc. v. Guérin, Éditeur Ltée,  F.C.J. No. 1583 at para 28.
 Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504.
 Gene Park, 2020. ‘The Room’ is the worst movie ever made, but I’ve seen it a hundred times — without irony. Washington Post, [online] Available at: <https://www.washingtonpost.com/entertainment/the-room-is-the-worst-movie… [Accessed 10 August 2020]. Such ‘accolades’ are further noted in the Wiseau decision.
 Supra note 34at para 38.
 Ibid at para 40.
 Ibid at para 15, quoting Entertainment Weekly.
 Ibid at para 205.
 Ibid at para 201.
 Ibid at para 206.
 Ibid at paras 206-8.
 Ibid at para 209.
 Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 30. At supra note 9, Carlos Fernàndez-Molina and Eduardo Peis discuss this balancing act within the context of moral rights and the online sphere (115): “A strict application of moral rights would prevent users from making optimal use of the vast possibility of handling digital information, and prove counterproductive for the information society as a whole: a certain amount of flexibility is needed to allow existing works to be used in the creation of new ones. Nonetheless, we must not forget that an author’s reputation can be easily damaged by subjecting his work to serious deformations, mistakenly linking his name to the work of others, or transmitting false information about him or his work, which would lead to severe liability problems. Clearly, there is a need to ensure both the user’s freedom and the author’s dignity.”
 Ibid at para 32.
 Bob Tarantino, 2020. Room Full of Spoons: The Contributions of Wiseau Studio v Harper to Canadian Entertainment Law. Entertainment & Media Law Signal, Available at: <http://www.entertainmentmedialawsignal.com/room-full-of-spoons-the-contr… [Accessed 10 August 2020]. See also Michael Geist, 2020. The Lawbytes Podcast, Episode 52: Fair Dealing For Film Makers – Bob Tarantino On The Copyright Implications Of The Room Full Of Spoons Case. [podcast] Law Bytes. Available at: <https://www.michaelgeist.ca/2020/05/lawbytes-podcast-episode-52/> [Accessed 10 August 2020] for further discussion of this case.
 Supra note 10at 211. See also Nicola Solomon and David Mitchell, 1996. Moral Rights – a case study. New Law Journal at 1656, quoted in Rebekah Powell, 2002. Breaching Moral Rights: Is there a Legal Remedy?. Dalhousie Journal of Legal Studies at 252-3: “Moral rights actions need a large amount of expert advice as to what constitutes derogatory treatment; consequently they are potentially very expensive if contested all the way to a formal trial.”
 Supra note 32(Afterlife) at paras 39-48.
 Ibid at paras 4-8.
 Ibid at para 7.
 Ibid at para 8.
 Ibid at para 40.
 Ibid at paras 41-4.
 Ibid at para 46-7.
 Ibid at para 48.
[A1]A last-minute addition. There’s a deeming provision specific to painting, sculpture, and engraving. However, this does not change the general thrust of the argument, as objective evidence has been required for other works such as film and photography.