GLOSSARY

Artist's Resale Right

The Artist’s Resale Right is a royalty that allows artists to share in the wealth they generate in the marketplace. It aligns Canada with over 90 countries around the world that already have ARR legislation. Many of those laws provide for visual artists to receive 5% when their work is resold in the secondary market through an intermediary such as an auction house or commercial gallery. For updates on Canada’s Artist’s Resale Right, visit CARFAC National’s campaign page here. 

CARFAC-RAAV Minimum Recommended Fee Schedule

The CARFAC-RAAV Minimum Recommended Fee Schedule is sort of like a minimum wage for artists. It sets minimum recommended rates for the use of artwork and certain services that visual artists provide. Widely recognized as the national standard, rates are all recommendations. That said, many arts councils require that public galleries pay artist’s fees as a condition of their funding. And artists have rights that help them to get paid.¹

Indigenous Protocols

Protocols are traditional ways of doing things in a particular territory. They range from hard rules and laws to softer customs such as good manners. Protocols are appropriate ways of engaging with Indigenous cultural material and interacting with Indigenous artists, Nations, and communities. Protocols arise from value systems and cultural principles developed within and across communities over time. Indigenous Nations and communities are diverse. While Protocols differ from community to community, there are fundamental principles that may be shared which may guide respectful collaborations and conduct. Following Indigenous Protocols supports the recognition of Indigenous heritage rights. It encourages culturally appropriate working practices, and it promotes improved communications between all parties with an interest in Indigenous visual arts.²

• Traditional Knowledge: Indigenous Traditional Knowledge, including ecological knowledge, medicinal knowledge, and cultural practices is, as defined by the World Intellectual Property Office, “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”9 As such, it does not always fit neatly into the traditional framework of intellectual property law. Despite efforts being made to find ways to protect and respect this knowledge, it remains challenging to determine IP ownership and control over knowledge developed over time, shared communally, and passed through generations.³

• Traditional Cultural Expressions: Canada has recognized the importance of protecting Traditional Cultural Expressions (TCEs) of Indigenous communities. TCEs, which are also referred to as “expressions of folklore,” include things like traditional designs, songs, dances, and other cultural practices that help form the history and identity of a community. The concept of protecting TCEs goes beyond standard copyright law and often involves a mix of legal, cultural, and community-specific mechanisms.⁴ 

• Cultural Appropriation: Cultural appropriation refers to the use of elements, practices, symbols, or artifacts from another culture. This term is particularly relevant when it is done without proper understanding, respect, or sensitivity of the culture. Cultural appropriation generally involves taking aspects of a marginalized or minority culture by members of a dominant or privileged culture. This process often causes trivialization, commodification, or misrepresentation of the original culture. Cultural appropriation is a complex and controversial concept. Its impact can vary depending on the context, intent, and power dynamics involved.⁵

Presenter

Organizations or individuals entering into agreements with artists to present their artworks. They may be operating for-profit or not, and include galleries, artist-run-centres, museums, community groups, arts councils, municipalities, businesses, individual curators, and others.

Professional Artist

Status of the Artist Legislation

Status of the Artist Act—the federal Status of the Artist Act (1992, c.33) recognizes the important role of the creator in society and promotes an understanding of the unique manner in which artists work. The legislation attempts to place artists on an equal footing with other professionals in the labour market and to earn a more equitable share of the profits on their work within the public art economy. As a result, the Status legislation has significant implications for labour law, contract law, copyright law, etc.

It also allows for the certification of trade unions and professional associations to help regulate remuneration and working conditions. In 1997, Status of the Artist legislation conferred the right of artists to collectively bargain at the federal level. This means that a certified organization has the right to negotiate on behalf of self-employed artists within their jurisdiction on a variety of issues including the implementation of standard contracts and wage rates, as well as pensions, unemployment support, and benefits that are enjoyed by employees in other fields.

In addition to the federal legislation, movements have been made to enact Status at provincial levels:

• Quebec

• Saskatchewan

• Alberta

• New Brunswick

• Nova Scotia

• Ontario⁶

The Status of Ontario’s Artists Act is a provincial law (2007c.33) that recognizes the arts as a profession and artists as economic and cultural contributors to the Province.  

¹CARFAC National, CARFAC-RAAV Minimum Recommended Fee Schedule, carfac-raav.ca

²CARFAC (2021) Canadian Artists’ Representation / Le Front des artistes canadiens (CARFAC) and consultant Lou-ann Neel under the guidance of an Indigenous Advisory Circle, Indigenous Protocols for the Visual Arts, indigenousprotocols.art/resource-guide

³Women Entrepreneurship Knowledge Hub, OCAD University’s RBC Centre for Emerging Artists & Designers, Canadian Artists’ Representation/le front des artistes canadiens (CARFAC) Ontario, and Artists’ Legal Advice Services (2024), Legal Considerations for Indigenous Artists & Designers: An Introductory Guide, pg.19

⁴Women Entrepreneurship Knowledge Hub, OCAD University’s RBC Centre for Emerging Artists & Designers, Canadian Artists’ Representation/le front des artistes canadiens (CARFAC) Ontario, and Artists’ Legal Advice Services (2024), Legal Considerations for Indigenous Artists & Designers: An Introductory Guide, pg.19

⁵CARFAC (2024), Using Source Material, pg. 5 

⁶CARFAC National, Federal Status of the Artist Certification, What is "Status of the Artist"?, carfac.ca/en/federal-status-of-the-artist-certification

Credits

This section of the glossary is extracted with permission from articles in the Artists Legal Advice Services website at www.alasontario.ca/legal-database, including “Navigating Disputes and Alternative Dispute Resolution (ADR)" by Kimberly Barbosa and "Moral Rights: to Waive or not Waive" by Sarah Zivoin."

Disclaimer

Please note that the ALAS Legal Database is provided for informational purposes only, and only includes summary legal information. The ALAS Legal Database is not legal advice, and is not a substitute for consulting a legal professional. You should speak to a lawyer about your particular situation before relying on any information in the database. Any use of information from the ALAS Legal Database is subject to the ALAS website terms and conditions.

Alternative Dispute Resolution (ADR)

ADR encompasses several approaches to resolving disputes outside of traditional court settings. These methods include:

• Negotiation: This involves the parties directly discussing their issues to reach a mutual agreement. It is an informal and flexible process where the parties work together to find a solution that suits everyone involved.

• Mediation: A neutral third party helps facilitate communication between the parties. This mediator guides them towards a mutually acceptable resolution. Mediation is particularly popular in the entertainment industry because it promotes collaboration and maintains professional relationships. It often leads to creative solutions that may not be possible in a courtroom setting.

• Arbitration: In this more formal process, an independent arbitrator hears both sides of the dispute and makes a decision. This decision is usually binding, meaning both parties agree to accept it as final. Arbitration can be a good choice when parties want a definitive resolution without the formality of court.

These ADR methods offer more flexibility, privacy, and often quicker results compared to traditional litigation. For those in the entertainment industry, where time is crucial and reputations are on the line, ADR has become a popular choice.

One of the main reasons ADR is becoming an increasingly valued tool in the entertainment sector is its ability to preserve relationships. Unlike court battles that can escalate tensions and damage professional connections, ADR allows people to address their concerns in a more cooperative, collaborative, and constructive way. This is particularly important in an industry built on networking and relationships.

Confidentiality is another significant advantage of ADR. Unlike court cases, which are public records, ADR proceedings are private. This confidentiality is especially valuable when dealing with sensitive issues, such as contract disputes or allegations of misconduct, where public exposure could harm one’s reputation and career.

While artists are encouraged to pursue ADR options, it is important to consider that ADR or attempts to get an ADR process started does not pause any limitation periods under Ontario law or any deadlines set out in your contract. If you are exploring legal options like starting a court action, being mindful of these deadlines or checking in with a lawyer can help you stay on track.

ADR methods like negotiation, mediation, and arbitrationprovide valuable tools for resolving conflicts in Ontario’s arts and entertainment industry. Mediation, in particular, stands out for its ability to foster collaboration, preserve relationships, and ensure privacy, which in turn helps individuals handle disputes more effectively and focus on their creative work. While small claims court is also an option for some cases, its suitability depends on the nature and complexity of the dispute. As the entertainment industry evolves, ADR will continue to play a key role in maintaining harmony and fostering productive relationships among its creators and producers.

Defamation

Defamation: Defamation law focuses on the protection of an individual’s reputation from harm. Within this law, two competing interests are weighed against each other: the protection of an individual’s reputation and the right to freedom of speech. The law of defamation is informed by both legislation and case law. This area of law is constantly evolving because of our changing understanding of what reputation and freedom of speech constitute.

It is also evolving due to the expanding number of ways in which we can disseminate information, such as by using social media, emails, or messaging applications.

• Libel / Slander: Libel and slander are the two different types of defamation. In Ontario, the ruling legislation guiding these two categories is the Libel and Slander Act. References to “words” are understood to include references to visual images, pictures, sounds, signs and other means of signifying meaning.

The Ontario act is not intended to be an inclusive definition of libel. Libel refers to defamatory words in writing or other lasting form that harm the reputation of the plaintiff. These words are often on permanent record and accessible to the public. Under the Ontario act, there are definitions and special rules for newspapers and broadcasting, including time limitations and provisions for apologies.

Slander refers to defamatory words that harm the reputation of the plaintiff. Unlike libel, these words tend to be impermanent spoken words.

Contracts

A contract is an agreement between two or more individuals and/or companies. The participants in a contract are known as the ‘parties’. The contract can be a written document, however sometimes an agreement may be implied (such as verbally or by correspondence between the parties). Generally speaking, one (or more) party(ies) will provide a good or a service, and in exchange the other party(ies) will provide something of value (such as monetary payment, or some other form of value). This exchange of value for a good or service is known as ‘consideration’, and it is a key element of a contract.

Contracts are important, and it is critical to understand how they work and what they include. They are not necessarily complicated but they can come in many different forms, and cover a wide variety of different exchanges of value. Some contracts can transfer a good (“I sell you this car”) or provide a service (“I will do this for you on this date”), while others can grant permission (“you are allowed to do this for a year”). But ideally every contract should clearly set out who they involve, what the agreement is about, the details of how the agreement will be carried out, and what happens if anything goes wrong. With these elements in place, a contract will fulfil its purpose of ensuring there is no misunderstanding between the parties to the agreement.

• Verbal vs Written: A contract is a binding agreement between two or more parties. In order for an agreement to be binding, there must be a few important features that are required for all contracts. In addition to the key elements of a contract, some contracts must be written in order to be effective (such as an assignment of copyright). However, it is sometimes possible to form a contract verbally, without putting anything into writing. Verbal contracts can present a variety of risks and concerns:

• • Generally speaking there is no physical evidence of the contract, and so it is up to the parties to demonstrate that the contract has been formed

  • Because the contract is not written, there is no agreed-upon contractual language and so there is a much higher chance that the parties may disagree on the terms of their agreement

  • Both of the above concerns can present significant issues if any party has to try to enforce the agreement, as courts are generally hesitant to apply legal consequences without written evidence of agreement between the parties

  • In certain cases there may be other people who require you to prove that you have a contract (such as if you are trying to sell an artistic work that includes any commissioned elements). If a third party requires you to have a contract in place then you may not be able to rely on a verbal agreement, and could have to prepare written terms after-the-fact

Artists should be careful about entering into or relying upon verbal contracts. The more important an agreement is, the greater the importance that the parties enter into a written agreement that clearly sets out the terms. Unwritten contracts come with significant uncertainty and risk, and leave open the potential for issues to arise down the line.

Intellectual Property

Intellectual property (IP) refers to certain rights that can be owned in certain types of creations and creative works. IP rights cover a broad range of subject matter, including artistic designs, business names, inventions, and written expressions. Generally speaking, the owners of IP rights may be exclusively entitled to use, make, import, distribute, share, or modify the creations in which they own IP rights.

IP rights are protected by laws enacted so that creators can benefit when they choose to share their creations with the public. Laws protecting IP incentivize the creation of new, original, and useful works/inventions, which will benefit society as well as their creators. In general, IP rights allow creators to authorize the use of and benefit from their creations for a certain timeframe, after which the general public may use a creation without restrictions from the owner of the IP. However, IP rights in a creation are not always owned by the creator (for example, if the creator has sold their IP rights to someone else or created their work in the course of their employment). 

It is also important to keep in mind that each country has its own IP laws, and so the IP rights that a creator may own can vary in each country. In order to understand what IP rights may apply, please keep in mind which country’s (or countries’) laws may apply. 

More information is available in the ALAS Legal Database. 

Below are a few of the different types of IP rights available to creators.

• Copyright: Copyright is a form of intellectual property protection that applies for certain types of creative expressions (known as ‘works’). The types of works that may be eligible for copyright protection include artistic works, literary works, dramatic works, musical works, and compilation and collective works (e.g. literary anthologies and newspapers). Copyright arises automatically upon the creation of a work, and there is no requirement to register for copyright protection.

  In Canada, for a work to be protected by copyright, it must be an original expression that is the product of intellectual effort by an author, and it must be fixed in a material form. Copyright does not protect facts or ideas or unexpressed concepts. It is also important to keep in mind that the author of a work may not be the owner of copyright in that work (although the author may retain their moral rights).

  The owners of copyright in a work are exclusively entitled to use that work in certain ways, including to control the publication, reproduction, communication, modification, or distribution of that work. If someone besides the copyright owner exercises any of these rights (without the owner’s authorization) then it may amount to an infringement of copyright in the work (subject to various exceptions to copyright, including fair dealing).
  
  Generally speaking, copyright protection for a work generally lasts for the lifetime of the author, and then for a further period that varies by country. In Canada, copyright protection currently lasts for 70 years from the end of the year of the author’s death. There are certain other conditions for works prepared by joint authors, and for works by unknown authors.

• Moral Rights : A creator of an original work acquires the right to protect the integrity of the work as well as the right to be associated with it either by name or pseudonym or to remain anonymous.  These rights are considered “moral rights” of the creator.  Moral rights cannot be transferred, whether by licence or assignment, even on the sale of the copyright of a work.  They are personal to the creator and live with the creator until they eventually pass on to the beneficiary of the creator’s moral rights upon the creator’s death, and subsequently pass to that beneficiary’s beneficiary of the creator’s moral rights, and so on.  After death, a creator’s moral rights continue to exist and may be exercised by those beneficiaries of the creator’s moral rights for 70 years after the end of the calendar year of the creator’s passing.  There are, however, situations in which moral rights may not be exercised. According to Canada’s Copyright Act, moral rights may be “waived” in whole or in part by either the creator of the work or a beneficiary of the creator’s moral rights.    

• Trademarks: The providers of goods and services (such as companies or retailers) may use certain indicators to distinguish their goods or services from those of other businesses. These source indicators are known as trademarks, and can come in a variety of forms such as business names, logos, slogans, or packaging. If two businesses or proprietors offer the same types of goods and/or services using confusingly similar trademarks then this could be an infringement and/or passing-off (i.e. one business pretending to be another to fool customers).

• Industrial Designs: IP law can be used to protect certain types of non-utilitarian visual designs, such as plans for three-dimensional objects or functional two-dimensional graphics (e.g. an app user-interface). This area of law generally only protects the non-useful, ornamental elements of designs, and not their intended function. For example, it could be possible to protect a distinctive and visually appealing chair, but not the concept of a chair. Industrial design protection can help people creating goods to protect the unique visual elements that make their goods aesthetically appealing.

• Patents: Inventors can sometimes protect their concepts for new and unique ways of doing things (i.e. an invention). This protection allows them to prohibit others from using the invention for a certain period of time, giving the inventor an opportunity to profit from their idea. The requirements for an idea to be patentable vary from country to country, but generally the invention must be novel and not obvious, as well as useful.

• Trade Secrets: IP rights generally do not protect information per se, and so trade secrets refers to a protection strategy for information that is important to a business (such as concepts, ideas, formulas, recipes). Because IP rights do not prevent others from using the information, the business that owns it must keep the information secret. This is often accomplished by only sharing the information with select individuals, and entering into non-disclosure agreements (NDAs) with those individuals to ensure that they keep the information to themselves.

Litigation

In Ontario, litigation refers to the formal legal process of resolving disputes through the court system.  It involves one or more parties (the plaintiff(s)) bringing a claim against (i.e. “suing”) another party or parties (the defendant(s)), and may include various legal processes and stages such as pleadings, discovery, motions, trial, and appeal.   Litigation occurs in different levels of court depending on the nature and value of the claim—for example, the Small Claims Court for claims up to $50,000, or the Superior Court of Justice for higher-value or more complex matters. The term encompasses the entire process of managing and resolving a civil dispute through judicial means, as opposed to alternative dispute resolution methods such as mediation or arbitration.  As litigation can be a costly and time-consuming process, it is typically pursued only as a last resort, after alternative attempts at resolving a dispute fail to reach a suitable resolution for the parties involved. 

Small Claims Court

In Ontario, small claims court also offers an option for resolving disputes, especially those involving small amounts of money. It provides a simpler and faster way to handle disputes up to a certain financial limit, which varies by jurisdiction. While small claims court can be useful for recovering unpaid fees or damages, it may not be the best choice for more complex issues. The monetary limit for claims in Ontario is currently $50,000, and available remedies are generally limited to monetary awards or the return of property. It is important to note that these limits vary across provinces. For more details on how small claims court works in Ontario, including how to file a claim or access online services, readers may find the following resources helpful:

• Suing Someone in Small Claims Court – Ontario.ca

• Small Claims Court E-Filing User Guide – Ministry of the Attorney General

• Small Claims Court – Ontario Superior Court of Justice 

One downside of small claims court is its limited scope and remedies. It may not be equipped to address intricate issues common in the entertainment industry, such as copyright infringement or defamation. Additionally, the confrontational nature of court proceedings can strain relationships and prolong resolution.

Despite its limitations, small claims court remains a practical option for quick resolution of certain disputes. Its straightforward procedures and low costs make it appealing for matters where the financial stakes are relatively low, and the issues are straightforward.