Recently, we learned that Canadian musician Dave Gunning ran into some copyright troubles regarding his latest album, No More Pennies. No, he did not use music or lyrics from any other artist without permission. What he did was something far worse, at least in the eyes of one organization. What he had the audacity to do was include images of the soon-to-be-retired Canadian penny.
When the Royal Canadian Mint caught wind of Dave's tribute album and the timely use of the penny in its artwork, it sent a legal threat to Dave stating that he was infringing the copyright of the Mint and that he must pay a royalty on each album sold
. Of course, the Mint did decide to give him a break on this royalty by waving the fees on the first 2000 albums sold, but said he had to pay after that. That was quite generous, or so the Mint was quick to claim.
“We have helped this guy out by giving him a break,” Alex Reeves, communications manager for the Royal Canadian Mint, said Tuesday.
“Now that we have explained the rules and the policy, it’s very clear what the implications are for using the penny’s image. And we’re certainly being consistent in the applications of our policy for any for-profit use,” he said.
Dave, however, saw things a bit differently.
“It is pennies to them but is pretty substantial for me,” said Gunning, who won two East Coast Music Awards in 2011, adding “we really had no idea” the ode to the penny was going to land him in hot water.
I had to scratch my head for a bit on this little dispute. Here in the US, works of the government are automatically in the public domain and can be freely used by the public. In regards to currency, while it is illegal to create counterfeit currency, it is legal to duplicate the images of currency as long as it is clearly a fake. Things are not quite so clear cut in Canada.
For the Canadian government, works it produces are covered by a Crown Copyright
in which the government retains some control over the use. However, even this explanation might not be quite so cut and dry. As Canadian lawyer Howard Knopf explains
To be clear, the album cover shown above does not infringe any so-called intellectual property rights of the mint because:
Someone over at the Mint should learn some basic facts about intellectual property law, This kind of thing makes people lose respect for IP law and for the credibility of government institutions. There’s nothing funny about that.
If there ever was copyright in the Canadian penny, which is doubtful, it has long since expired and the above album cover would not be infringing copyright in any event
The above album cover does not "use" or "adopt" the Canadian penny in any technical sense covered by the Trade-marks Act.
Knopf points out that the Mint has even attempted similar actions before, when the city of Toronto created an ad campaign which featured an image of the penny. Just as it was then, it is now: the penny, if it was ever covered by copyright, has long since entered the public domain. This is because Crown Copyright only lasts 50 years. This fact, and plenty of negative publicity, lead the Mint to drop its action against Toronto.
Now, we learn that the Mint has turned tail and dropped its action against Dave too
The mint did not only waive the fee for Mr. Gunning, but said it would also review its intellectual property policy to ensure that it’s fair.
“We recognize our policy as it is today may not consider the individual needs and circumstances of those who request the use of our images,” spokeswoman Christine Aquino said from Ottawa.
“We’re allowing [Gunning] to do this and we truly wish him well in his career.”
Perhaps this change of heart came about because those running the legal offices of the Mint were reminded that they don't have a solid claim on the copyright of the penny. Even if they did, as Knopf clearly pointed out, Dave's use of the penny in his album work is transformative and as such covered by fair dealing. Either way, Dave is happy to have this saga ended.
“Everything’s gonna taste better now. I’m gonna sleep better,” laughed Mr. Gunning, who said he was overwhelmed by the attention his story had generated across Canada and the United States.
“This all started very simply from the fact that I’ve got a wife and three kids and just want to be able to make a living, and felt that I had to stand up for that.”
All of this raises the question of why a government has any claim of copyright on its currency to begin with. In reality, to claim such a copyright makes no sense. If the concern is that people would attempt to print their own currency, that is what counterfeit laws are for. Otherwise, it seems to be an unneeded burden on the freedom of Canadians.