Canadian Artist Uses Copyright to Stop Pipeline Development
Image courtesy of Peter von Tiesenhausen. Copyright Peter von Tiesenhausen.
I’m still trying to get to the bottom of this, so any Canadian copyright lawyers out there please feel free to chime in.
It appears that Canadian artist, Peter von Tiesenhausen, has been able to fend off pipeline developers by creating and installing sculptural works on his land. The confusing part is that news sources, like this one, are claiming that von Tiesenhausen has “copyrighted” his land as a work of art, and that it is this copyright that has kept pipeline developers from taking von Tiesenhausen’s work. However, this news source claims it’s “the threat of a long, drawn out court case that would be widely covered by the media.”
I’m wondering how much of this ado is due to potential moral rights claims von Tiesenhausen may have under Canadian copyright law, which of course would add to the value of the land (again, Canadian copyright lawyers please feel free to chime in). Canada.com reports,
His legal move vastly increased the amount of compensation he is potentially entitled to demand from any oil or pipeline company wanting access to his place, because changing his property would be copyright infringement.
“Now instead of maybe $200 a year for crop losses, we’d have to be paid for maybe $600,000 or more in artistic property disturbance.”
And there are still the negative PR issues the pipeline developers would have to face should they opt to move forward with acquiring von Tiesenhausen’s land.
Matt:
November 10th, 2014 at 10:40 am
My take, as a Canadian copyright lawyer:
There is no registration requirement in Canadian copyright law. If something qualifies as a “work” under the Copyright Act, it automatically gets copyright protection. It sounds like he has a number of art pieces scattered around his property. Those would probably be found to be works, although whether the broader claim that his plot of land, as a whole, is one giant “work” is a little more dubious. But he may not have to succeed on that point anyway; protection of the various distinct works scatted on the property might be enough.
I agree that the artist is probably basing his stance on moral rights. His moral rights would be infringed by any “distortion, mutilation or other modification” of any painting, sculpture or engraving. There was at least one case where the court awarded damages of $120,000 when a work by a prominent artist was destroyed. So maybe if you read that case, multiply those damages by multiple works of art and then wish real hard, you can come up with a sum of $600,000 that you can wave in front of the oil companies to try and scare them off.
You CAN register your copyright, which can be useful as evidence if you do go to court, but as far as substantive law goes, registration doesn’t grant you any new rights. A very brief search of “Tiesenhausen” in the Canadian copyright registry didn’t turn up anything. I suspect they simply mean he has adopted a certain negotiating position.
My wild guess would be that he’s adopted the stance that any provincial laws which might grant oil companies access to the natural resources under his land have no effect on his rights under copyright law (which is federal law). So any disturbance of his artwork would still constitute an infringement of his moral rights. There might be enough basis to that argument that oil companies, wary of the hassle and expense of a potential lawsuit, have held off.
(I disclaim this entire comment with the warning that I know far, far less about the law surrounding natural resources and expropriation, so I have no idea how these two areas of law actually interact).
Sergio Muñoz Sarmiento:
November 10th, 2014 at 10:50 am
Hi Matt:
Thank you much for your quick and thoughtful reply and analysis.
I’m glad to see I was in the ballpark, and it sounds very much like
US law . Let’s keep an eye on this case and see how it plays out.
Much obliged!
sms