Fast Facts

Lorraine Fleck
Who We Met
  • Lorraine Fleck
Education
  • Called to the Bar of Ontario (2005)
  • Bachelor of Laws (LL.B), Queen’s University (2004)
  • M.Sc.F., University of Toronto (2001)
  • Hons. B.Sc., University of Toronto (1997)

The Professional Skeptic

The first thing that struck me about Lorraine Fleck was the way in which she spoke. It’s a strange thing to be struck by immediately when you think about it – normally it’s some physical element of the person’s appearance that makes an impression before they even begin to communicate. Yet, for this particular presenter & presentation, it was most definitely her way of speaking that caught my attention. Maybe it’s because I haven’t been around a lot of lawyers in my short time on this earth, but her entire attitude was so direct and to the point; I guess that just happened to really come across in the way she spoke. There was this instant feeling that we had been joined by someone who was really, really intelligent.

After doing a little bit of lurking, I learned that Lorraine boasts far more than a mere law degree; she has a Bachelors and Masters of Science, was called to the bar a year after graduating from law school (my limited lawyer-knowledge gained from binge watching Suits tells me that this is no easy feat) and has published over 20 scholarly articles. She also sits on different national & international committees that deal intellectual property related issues, and has her own firm. So basically, Sheila, you brought us the real life version of Jessica.

The Presentation

Lorraine was able to impart quite a bit of wisdom in the 2ish hours she spent with the class; here are some of the highlights from her presentation that any budding designer (or musician ;)) may find helpful.

What is Copyright?

Copyright is defined as the protection that grants the author of any given work the exclusive right to reproduce and/or use his or her work; essentially, it’s used to prevent unauthorized copying. In order to invoke copyright protection, the work must have both originality and fixation (meaning that it must physically be recorded, stored or fixed for an instant in time). Copyright is created as so:

  • The original work is created by a Canadian citizen or citizen of a Berne Convention country
  • The work must come into physical existence; copyright does not exist in ideas
  • If the work is published, the work is published in Canada or a Berne Convention country
  • No need to register or mark (e.g. © 2016 Lorraine M. Fleck, © 2016 Fleck & Chumak LLP)

This seems fairly straightforward; selling bootleg copies of Good Will Hunting on VHS is not allowed, because you did not create said genius piece of film history. However, the advent of the internet has blurred the lines and reshaped what it means not only to have the “right” to claim copyright, but to enforce copyright infringement claims.

Quick Copyright Questions

How long does copyright exist?

The protection exists for a significant period of time; typically, the author’s lifetime + 50 years. If there are joint authors, the term lasts until the end of the 50th year following the last author’s death; if the author is unknown, the end of the 50th year following publication or 75 years after the work was made.

Who owns copyright?

Usually the person who creates the work, but there are exceptions – most notably (in our case at least) when working as an employee for a firm. Employers are the first owner of works created by any given employee… so, if you make a kick-ass website for a client and quit the next day, you can’t take that design with you. A bit of a bummer for anyone in the creative industry.

Who can use copyright materials?

Whomever owns the copyrighted material (and ownership is transferrable through an assignment agreement) and anyone else who has permission, or a license.

Lorraine did caution the class to be extremely careful with “royalty free” content; as each site has its own terms of use and most only truly offer non-commercial use licenses, it’s often your best bet to read the license terms very carefully.

Copyright Infringement

In essence, copyright infringement is a moral crime. You’re taking the culmination of someone’s ideas, experiences & the expression found from them and pretending they’re you’re own. I may love the song “Man Who Sold the World” by David Bowie – I may even be in awe of the fact that he wrote when he was 23 – I may even be slightly jealous that I don’t feel that I have the capacity to be that cool, ever – but I can never say I wrote that song. It’s a bit of a bad example, because everybody knows that’s a Bowie tune (except those 90’s grunge kids who thought Kurt Cobain wrote it when he played it on MTV)… but you get my drift.

In more professional terms, copyright infringement is defined as the making of an unauthorized copy of an original copyright work; there must be a substantial portion of the material copied. There are no standardized rules for determining what can be considered as substantial, but a reductive analysis can be used to examine the potential infringement through the following elements:

  1. The original elements in allegedly infringed work
  2. Elements not protected
  3. Remaining elements in allegedly infringing work
  4. Whether substantial portion of original work copied does not apply in most cases

Lorraine also made a point of highlighting that copyright infringement can spread, literally, like a virus; once you’re “contaminated”, anything you produce can be held to be a derivative of that initial infringed work. Even having access to someone else’s work can be a form of contamination – and the crux of the issue lies in that there does not need to be any direct access; it can be implicit or even implied. Damages are often significant, as the plaintiff can elect to recover damages & profits or statutory damages (which can lead to fines up to $20 000). SCARY STUFF.

Exceptions to the Rule

The major category is considered to be “fair dealing”. These include (but are not limited to):

  • Satire: use of the original work to mock someone else
    • While this gives creatives a bit more wiggle room, Lorraine cautions to still be very careful, as satire & parody are both able to infringe upon trademarks, resulting in potential defamation claims
  • Parody: the original work is ridiculed
  • Research or Private Study
  • Criticism or Reviews
  • News Reporting
  • Not limited to private/non-commercial use, but no specific advertising exception

So, to summarize: you can make fun of Disney all you want in your designs, but do NOT put those mouse ears in. You’re asking for trouble at that point.

Final Thoughts

Lorraine’s entire talk (and James & John’s interest in the impact of TPP on intellectual property law) was really fascinating for one simple reason: this is an area of our industry that we truly have not explored. None of our coursework covers how to protect yourself from copyright infringement, or to take the correct steps in using content posted on “royalty free” sites. Also, as you may have guessed from above, I thought Lorraine was pretty awesome. The feeling was, however, solidified when my token “What’s your working music?” question hit the coolest soundtrack choices we’ve heard yet: Ocean’s 12 & the Bourne Identity. So basically, she chases down intellectual property thieves with suitable theme music. It doesn’t get better than that.

For your listening pleasure (and until next time), Sheila 🙂