Musician David Gunning’s new album entitled “No More Pennies” features images of the Canadian penny as part of its album art. The album features a picture of a young man with a pile of spare change (including pennies), an image of a setting sun/penny, and an image of a steam train with pennies for wheels. Soon after the announcement of the release, Gunning was contacted by the Royal Canadian Mint (hereafter “RCM”) who claimed that the art contravened their copyright in the images of the Canadian penny.
The art, designed by Michael Wrycraft, was supposed to be a metaphor for the passage of time according to Gunning. The RCM, acting according to their policy for intellectual property, wanted to collect $1200 in royalties if Gunning were to produce an additional 2000 CDs. The amount “…is pennies to them but is pretty substantial for me” according to Gunning, no doubt relieved that the RCM chose not to pursue the royalty on the first 2000 CDs he had already made.
The RCM was initially alerted to the issue by a fan of Gunning’s, who works for the mint. According to Gunning, the fan pitched an idea about trying to sell the album in the RCM gift shop in Ottawa to coworkers. The unfortunate result was that Gunning was subsequently contacted by the RCM to notify him of his breach of copyright.
The policies of the RCM with regards to intellectual property are outlined on their website in some detail. In order to have acquired the rights to use images of the penny, an application form needed to have been completed and a minimum application fee of $350 needed to be paid. After that point a committee would have considered a variety of factors in determining whether a subsequent royalty would also need to be paid. “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” said Alex Reeves (communications manager for RCM).
In response to the RCM, Gunning is urging his fans to bring pennies to his concerts in order to fund the payment of the royalty and make a donation of $1,200 to the Izaak Walton Killam Hospital for Children in Halifax. Fortunately for him, the RCM dropped the royalty on September the 13th, stating “The Mint’s recent interaction with Mr. Gunning has brought attention to our current intellectual property policy. We now recognize that our policy as it is today may not consider the individual needs and circumstances of those who request to use our images.” However, problematic policy may not be the sole cause of the retraction. After all, policy rule 3.4.2 already states “In some cases, the Intellectual Property Committee (hereinafter the “Committee”) may require the applicant to pay royalties in addition to the administration fee” (Emphasis added). The requirement of a royalty payment was always an optional cost for use of copyrighted images according to RCM policy. More likely, the RCM recognized that they were getting bad press by forcing a struggling artist to pay a royalty and retracted the royalty as soon as it became public knowledge. As a result of the RCM retraction, Gunning said that the funds raised initially for paying the royalty would be included in his charitable donation to the Izaak Walton Killam Hospital for Children in Halifax.
Although the issue between Gunning and the RCM has been solved, it has clearly been identified that there are issues with the current RCM policies regarding intellectual property. Under section 12 of the Canadian Copyright Act, works “prepared or published by or under the direction or control of Her Majesty or any government department” are held in copyright by her Majesty for a period of 50 years. This likely includes copyright in Canadian currency, but what does that mean for the enforcement of copyright? Does that mean that David Gunning would have been fine if he had only used images of pennies created before 1962 on his album? Can a penny from 2010 be considered an original work under the definition in section 2 of the Copyright Act, given its similarity to the design of the 1937 penny created by George Edward Kruger-Gray? In my opinion, the policies and rules governing the copyright of Canadian currency should be clarified by the federal government and the RCM. Otherwise, acts of potential infringement like the situation involving David Gunning are bound to occur in the future.
Adam Stevenson is a JD Candidate at Western University, Faculty of Law.