Of death and copyright: the sum of unhappiness

Unlike love and marriage, Laurel and Hardy, pride and prejudice and Romeo and Juliet, the pairing of death and copyright flashes less speedily into the mind -- yet the two are intimately linked. The duration of copyright in authors' works is generally calculated by reference to the addition of a post-mortem term of fifty or seventy years, calculated from the end of the year in which the author's death occurred. As poignant as the sting of the bee, the death of the author triggers that most bitter-sweet of notions, the potential income stream that can drawn upon by grieving spouses, lovers, children and assignees -- but which can never be enjoyed by the person whose creativity sparked it off in the first place, that person being dead.

Death has greater significance than merely post-mortem copyright term. Many is the copyright work that has itself featured death: to name a few, The Naked and the Dead, Tod und Verklärung, Le morte d'Arthur [a shamefaced Merpel confesses she read that as Le morte d'Author ...]. Some copyright litigation has prompted the occasional litigant to ask, of the judge, snug and somewhat stationary in the warm fug of post-prandial glow, "is he only sleeping -- or is he dead?" And now we even have a copyright dispute, all the way from Canada, about an infringement of a tombstone pattern. This is the nub of "Toronto designer accuses cemetery of copyright infringement" by Ashante Infantry [real name alert], writing in The Star here. According to the author (in relevant part):

"Toronto interior designer Laura Abanil is accusing a Toronto cemetery of copying the tombstone pattern she says she conceived to honour her mom. But lawyers for the Catholic Cemeteries Archdiocese of Toronto counter the work was created under contract by another firm and the copyright belongs to them and the contract firm. The disagreement revolves around who holds the copyright to a specific combination of common or stock images.

Two years after Mary Abanil succumbed to cancer in 2007, her only daughter claims she designed the grey and black granite headstone which is etched with five cascading calla lilies, Mary Abanil’s favourite flower, representing the woman’s husband, two children and the family’s dog. It also features a beveled cross looped with an awareness ribbon for the rare form of the disease which killed her at 57....

“It took me awhile to come up with something. I walked around the cemetery, looked at the other stones and didn’t see anything that resonated with me. Being a designer makes me extra picky. I spent a few months brainstorming ideas, throwing out crumpled sketches, which I still have, until I finally narrowed it down to one drawing and focused on that.”

...  Abanil said she was stunned when she ...discovered several nearby headstones sporting the same design, minus the cancer insignia. She engaged a lawyer who fired off a cease-and-desist letter to the Catholic Cemeteries Archdiocese of Toronto in August alleging misappropriation of her creation.

“The unauthorized use of Laura Abanil’s tombstone design clearly and equivocally constitutes copyright infringement pursuant to the Copyright Act…It is apparent that your corporation has profited from the sale of tombstones containing our clients proprietary design,” said the missive, which requested it stop using the design, remove the offending headstones and proposed a confidential settlement which would pay her $50,000 for damages. ...

... In reply, the cemetery’s lawyers maintained the artistic work of the tombstone was created by WLC Monuments under contract to the Archdiocese and the two own the copyright.

Abanil’s “drawing may be said to show a typical family response to conceptualizing a tombstone, in that it combines symbols that are well known and are frequently incorporated in tombstone design,” stated one letter. “It further depicts the cross and flower symbols in positions that are common. Neither the combination of symbols in Ms Abanil’s drawing, nor the specific representation of the symbols in the drawing, are sufficient to grant Ms Abanil ownership of copyright in the tombstone and its design.” ...

The corporation proposed to settle the matter without any admission of copyright infringement for a $1,000 donation to the charity of her choice, subject to their approval. ...

It could be a tricky case if it winds up in court, said Ariel Katz who teaches copyright law at the University of Toronto. “The difficulty that the court faces is how on the one hand to recognize the copyright, but on the other hand not to give too wide a monopoly for someone who has made a design” that utilizes aspects commonly used for tombstones,” he said.

Carys Craig, an associate professor specializing in intellectual property law at Osgoode Hall Law School, said in an email “The design of the stone may well be protected by copyright. If Laura Abanil did indeed draw the design, and used her skill and judgment in doing so, then there is no reason why the design would not be protected as an artistic work.

“Certainly, no one could claim a copyright monopoly on the idea of depicting calla lilies on a headstone, for example. Similarly, stock symbols that are frequently incorporated into tombstone designs may be regarded as in the public domain. However, the specific design of the stone, including the particularities in the rendering of the flowers, as well as the selection and arrangement of the other elements, would attract copyright protection.”

Abanil would prefer to resolve the case without a judge.

“Since this is such a personal matter, it doesn’t have to get messy. If they’re going to continue to use my design they should either pay for it, or figure out something with me that I’ll agree with,” she said, noting her family is still suffering from the loss of her mother".

The IPKat sees no problem with copyright vesting in a particular arrangement of stock images, any more than he sees any problem with the lyrics of a song enjoying copyright just because they're a particular arrangement of stock words -- but when he reads words like "the work was created under contract by another firm and the copyright belongs to them and the contract firm", his immediate response is "let's not even look at the copyright issues till we've read the contract and seen what the parties have put their names to.  Merpel says, there's an interesting Bentham point here.  If the sum of a man's happiness is one, and that we look to achieve the greatest happiness for the greatest number, this applies to unhappiness as well. Ms Abanil's grief, like the personal feelings of any bereaved human, are entitled to be respected -- as is her feeling of anger that her idea and/or copyright-protected work has been used by another in a manner which she considers inappropriate.  But what about the feelings of those other bereaved families whose loved ones now lie beneath allegedly infringing tombstones, and who way also wonder whether they face a threat of having to obtain a replacement stone?

A katpat goes to Howard Knopf (Excess Copyright) for delivering this link, quite intact, to the Kats ...