A child’s drawing takes on inestimable value in our hearts, even if it is on the 14the of the day to be offered to us and that it is of great insignificance. But did you know that a drawing executed by a minor who has no artist status is also protected by law?
This is the amazing story of Mario Perron, visual arts teacher at Westwood Junior high school, in Saint-Lazare, in the regional county municipality of Vaudreuil-Soulanges. This establishment is part of the Lester-B.-Pearson School Board. On January 19, this teacher proposed an exercise that was, to say the least, original to his 96 grade 7 students.e and 8e year.
He asked them to participate in a project called “ Creepy Portrait » which consisted of creating a frightening portrait of one of their comrades or of themselves. All this in the style of the artist Jean-Michel Basquiat, known for his style combining handwritten signs and primitive-looking illustrations.
On February 8, wondering about the “professional accomplishments” of their teacher, as specified in the request instituting proceedings, certain students carried out a search on the web using his name.
What was their surprise to discover that their teacher was offering items (mugs, t-shirts, cellphone cases, cushions, canvases on canvas, etc.) displaying their drawings on the Fine Art America website without their consent. The price of these items ranged up to $150.
It was easy for the students to identify their works, because the first names of certain creators appeared on articles. Alerted by the children, parents then issued a formal notice. The complaints and several injunctive requests made were ignored.
But last Friday, 10 parents filed a $1.5 million class action before the Superior Court under the Copyright law against the teacher and the Lester-B.-Pearson School Board. The suit seeks $155,000 per plaintiff. An amount of $100,000 in punitive damages and another $150,000 in legal costs are also requested.
In addition, the parents, whose number could increase to 13 according to Martin B. DeBellefeuille, lawyer in charge of this lawsuit, are demanding an apology from the teacher, the removal of the works from all websites (which was done) and an account of sales made to date.
At the Lester-B.-Pearson School Board, they refused to talk to me about this story which is currently going around the world, limiting themselves to saying that they do not comment on “internal investigations or questions relating to human resources” , especially since this case is now before the courts.
Upon discovering this affair, you will be tempted to say: but how can a child’s drawing be protected by Copyright law ? “Any form of art that emanates from a person belongs to its author, unless an agreement is signed with another party,” M explained to me.e Martin B. DeBellefeuille. The status of the artist and the age of the creator are of no importance. If someone else appropriates a work to exploit it, they owe the damage they cause to the creator. Importantly, the law provides for damages that are statutory. »
“It shows that works are protected even when minors create them,” Ysolde Gendreau, a professor at the Faculty of Law at the University of Montreal and a specialist in intellectual property, told me. “This is an extremely rare case. This is the first time that i see this. »
The amount of the lawsuit, which amounts to 1.5 million dollars, strikes the imagination. Is this exaggerated? “It’s a good reflex to have gone for statutory damages,” says Ysolde Gendreau. That said, we will have to see how we calculate these damages. What I find interesting, however, is what punitive damages are being claimed for. »
Is the art that emanates from a course the property of the institution or the teacher? This is a question that will need to be clarified.
On this, François Le Moine, lawyer specializing in art and intellectual property law, is categorical. “The only exception to not owning your work is being in an employment situation. However, a school board is not the employer of a student. The latter retains his copyright. As for the teacher, unless a project is the subject of a special agreement, he cannot be the owner of the works of his students. »
François Le Moine believes that this case should provoke reflection on the question of copyright in schools. “This shows that there is a significant lack of awareness of copyright in schools. It wouldn’t be bad to provide training for teachers and students. »
He is absolutely right, because the thing that surprises me the most in this case is that a high school art teacher could have done such a thing while circumventing the law that protects art and creators. Ignorance or blindness, in this case?
The request to create a “ Creepy Portrait » came from a missive posted on Google Classroom, a tool that the Lester B. Pearson School Board uses to communicate with students and parents. The teacher made this request, specifying that it was necessary to be inspired by Basquiat’s work… and not to plagiarize it.
You can not make that up !