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CARFACs Supreme Day in Court

Canadian Artists Representation v. National Gallery of Canada
On May 14th, 2014, CARFAC Ontario headed to
Ottawa to witness the final showdown between
CARFAC National and the National Gallery of
Canada (NGC). Our victory was documented in
articles across the nation, as the Supreme Court
came to an immediate and unanimous decision to
hear our appeal. In the words of Past President and
negotiator Gerald Beaulieu: we were vindicated.
The case began 12 years ago with CARFAC &
RAAV (Regroupement des artistes en arts visuels du
Qubec) negotiating a first scale agreement with the
NGC. The agreement was to act as a foundational
contract for artists who engage with the Gallery.
After a few years, the topic of minimum fees became
a cause for conflict, with a perceived ambiguity
between the Status of the Artist Act (SAA) and the
Copyright Act. The NGC received legal advice,
suggesting that CARFAC & RAAV did not have the
authority to negotiate matters of individual copyright.
An impasse in negotiations forced CARFAC and
the NGC to undertake a hearing with the Canadian
Artists and Producers Professional Relations Tribunal
(CAPPRT) and, following that the Federal Court of
Appeal. The case eventually turned to the Supreme
Court of Canada to address the complementary
nature of both Acts and whether or not both parties
would have to return to the negotiating table.
The morning began with CARFAC supporters
convening on the steps of the court building, anxiously
waiting for the doors to open. Artists were greeted
by wide-eyed security guards who didnt seem to
anticipate our crowd of over 30 people. Once all
seated, the Court began with CARFACs argument.
The seamless presentation, passionate delivery,
and responses from our lawyer David Yazbeck, with
support from Wassim Garzouzi and Michael Fisher,
was a highlight for CARFACs President, Grant
McConnell. The exceptionally strong case David
made was a highlight for many of us. The Courts
questions surrounded the complementary nature of
the SAA and the Copyright Act, in aim of clarifying
a federal associations role in negotiating with
federal institutions. The conversation was geared
toward an understanding of the situation, rather than
a challenge to our position. David handled each
By Tara Mazurk
question with grace and substantial knowledge. He
ensured that CARFAC & RAAV were represented as
important organizations which protect the working
conditions of artists.
First impressions seemed to indicate that these
negotiations were a huge leap forward for the
symbiotic relationship between the workforce and
arts institutions. However, upon further analysis
of the nature of the impasse, the NGCs position
became truly puzzling. This issue did not previously
exist in other cultural sectors, and the result of this
case would set a huge precedent. With all this build-
up the arguments of the NGCs representative, Guy
P. Dancosse were highly anticipated. The NGC
voiced that artists should be compensated, but that a
minimum fee takes away an artists right to negotiate
less. Their argument noted that a minimum fee is
restrictive and undermines an artists ability to make
trade-offs during a contract negotiation.
Moreover, the NGC believed that the gallerys use of
an artists work was not a service and thus did not
fall under CARFACs negotiating purview. A powerful
moment was when Justice Marshall Rothstein
challenged this argument. He noted that if there was
no transfer of property, than the public lending of an
existing artwork would be similar to a hotel or car
rental service. Dancosse further argued that only
services such as artist talks, tours, and installation
were applicable in the scale agreement. For Beaulieu,
a highlight was Justice Rosalie Silberman Abellas
incredulity to the NGCs position that the principle
role of an artist at the gallery was not to show their
work but give talks and tours. She wasnt buying any
of it.
Justice Abella also voiced a conceptual problem
with artists working for less. She explicitly noted that
a minimum fee protects artists so that at the very
least, theres a floor. Moreover, she reflected that
it had become a standard in the cultural sector to
include fees in scale agreements. It was a continuous
back-and-forth between the Court and the NGC, with
the court challenging the arguments presented. On
several occasions, the NGC attempted to assure the
Court that they were protecting artists. I found the
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Our legal team (left to right): Wassim Garzouzi, Michael Fisher and David Yazbeck.
Photo Credit: CARFAC National.
statement odd, as their case was against
the very association that was built and
still exists to protect artists. Taking
minimum fees off the negotiating table
was a blow against everything cultural
workers had previously fought for.
After each oral presentation, we
waited for the Courts timeline for a
verdict. The decision came suddenly
and unanimously; a rarity as it often
takes months for decisions to be made
at this level. Walking out of the court
room was surreal. Grant McConnell
reflects, I think we were all a little in
shock. Not because of the decision
but because we were not expecting an
almost immediate judgement. Maybe
shock was good. I dont know how
appropriate it would have been to
whoop and holler in celebration in the
Supreme Court. As our colleagues
shook hands, most of us tried to hold
back huge grins, which was extremely
difficult.
The NGC v. CARFAC case reminds us to be
cautious when entering into agreements with
institutions. This is not to induce a gallery/artist
divide, but to proactively recognize when your
rights are being compromised. McConnell advises
us to know this: galleries and arts organizations
exist because of the efforts and contributions of
artists. This underpins any and all negotiations
that an artist may enter into. It may take a shift
in thinking to start out from the position that the
artist is central, but once this is understood and
proclaimed, all else should build around this in
negotiations. And with advice from Beaulieu, just
because a contract has institutional letterhead on
it does not mean you have to accept everything it
contains. Before you sign, make it your contract
as well so that it meets your needs in a mutually
acceptable way.
Through hearing our appeal, Canada has proclaimed
the value of artists concerns. Just as our creative
works embrace transformation and advance
understanding, our professional relationships must
also adapt. Gestures of copyright in the CARFAC
and NGC negotiations are not solely matters of legal
rights, but an important step for the advancement of
the visual arts in Canada.
RESOURCES
Backgrounder on the case: http://www.carfac.
ca/2013/03/background-on-carfac-raavs-
negotiations-with-the-national-gallery-of-canada/
Watch the webcast: http://www.scc-csc.gc.ca/
case-dossier/info/webcast-webdiffusion-eng.
aspx?cas=35353