In adopting pre-existing works as source material to convey new meanings and understandings, appropriation art is an integral avenue of artistic expression. However, the narrow fair dealing exception provides little protection to artists who engage in this form of social commentary, a form which necessitates reproducing the original copyrighted work for a successful referential analysis. This paper will explore the unique challenge that appropriation art poses to the Canadian copyright law. As a preliminary matter, the author will discuss the conceptual basis behind this aesthetic practice and situate it within traditional notions of authorship. The author moves on to examine the current Canadian jurisprudence under the case of Michelin and compares this approach to American developments under its broader fair use doctrine. It is argued that the fate of appropriation art as a legally valid practice largely depends on the recognized policy objectives of a given copyright regime. While developments in Théberge and CCH Canadian Ltd. seem to offer hope to the appropriation artist, short of a possible Charter challenge to the Copyright Act, they do little to change the exhaustive nature of the fair dealing exceptions. The author concludes that the most viable solution to accommodating appropriation art in the Canadian copyright regime is through statutory reform akin to the more flexible fair use standard.
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Karen Lowe, "Shushing the New Aesthetic Vocabulary: Appropriation Art Under the Canadian Copyright Regime" (2008) 17 Dal J Leg Stud 99.