‘He took out all the spirit and meaning:’ Emerging Indigenous artist accused of plagiarism | CBC News

In December 2022, Autumn Smith received a photo of what looked like her artwork — a self-portrait with her grandmother inspired by a memory of the day her grandmother gave her a traditional name — only it wasn’t her painting.

It was a post from Wasauksing First Nation artist Tyler Rushnell’s Instagram account. Smith says Rushnell copied her work but changed the plants in his version.

“To see somebody else take that without understanding the story and the connection that we all had to it, it’s hurtful. I was very hurt when I saw that,” said Smith.

Smith said in her painting, she wanted to honour the teachings she received about becoming a woman and her traditional name. She’s from Magnetawan First Nation just south of Sudbury, Ont.

The painted sky and tobacco plants flanking the two women in Smith’s painting represent that name: ishpimiing nibi waabo, “the place in the sky where the water comes from.”

“He took out all the spirit and meaning in there,” Smith said.

Smith said there are about 10 other artists who believe their artwork was plagiarized by Rushnell.

“I sent him a message around the beginning of December, and I said, ‘Hey, I noticed that there were that some of your artwork looks very similar to the artwork of other artists. Can you tell me what that’s about?'”

In Facebook messages between Smith and an account appearing to belong to Rushnell, Rushnell acknowledged the similarities, admitted his naiveté as an emerging artist and said he was learning about his Indigenous culture.

He apologized, promised to credit artists and said he appreciated Smith for allowing him to correct his mistakes.

Smith said that almost a month later she sent Rushnell another letter on behalf of the artists’ collective indicating they believed he had plagiarized their work.

“I had really hoped that we could resolve this personally, that we could talk to each other and come to an understanding and work towards a better future,” said Smith.

The artists contacted by CBC News said they are not currently seeking legal action against Rushnell.

Rushnell did not respond to an email seeking confirmation he’d messaged with Smith or received the artists’ collective letter.

Smith said she believes Rushnell is a talented artist and commended some of his newer artwork, which “reflects his personal style.”

Joshua Pawis-Steckley, also from Wasauksing First Nation, said designs Rushnell did for the Toronto Maple Leafs Indigenous Celebration Games on Jan. 7-8 appeared to be traced from his work for the Toronto Raptors’ Indigenous Heritage Night.

Pawis-Steckley and Rushnell worked with the same design teams from Maple Leaf Sports and Entertainment (MLSE).

Pawis-Steckley contacted the design team to see if they noticed the similarities between the artwork. He said MLSE agreed to remove the floral designs in question from their social media and website. 

CBC News reached out to MLSE for comment and vice-president of communications Dave Haggith confirmed working with both artists but declined to comment further about the allegations against Rushnell.

Pawis-Steckley said he’s aware of the group of artists who’ve alleged Rushnell’s designs are tracings of other artists’ work.

“We’re using the same dark, heavy outlines and the same colours for the most part, but we’re telling different stories,” Smith said of the Woodland art style.

“A lot of Woodland art is very personal to us.”

Potential legal implications

CBC News made several attempts to reach Rushnell over social media and through email. He declined to comment about the allegations against his work.

“Legal action is [taking] place, no words to speak thank you,” Rushnell’s emailed statement to CBC News said.

“If they claimed I stole their art they should take legal action like a normal human being.”

Rushnell informed CBC News they would be blocked. Artists who’ve complained their art was plagiarized told CBC News Rushnell blocked them after they attempted to contact him. 

April Britski, national director of Canadian Artists Representation, a non-profit organization that represents Canadian visual artists, said original works of living artists are protected under Canadian copyright, although there are some limitations.

“The problem is that it can be prohibitively expensive for artists to defend their rights — especially if it’s constantly happening,” said Britski.

Statutory damages range from $500 to $20,000 per work under Canada’s Copyright Act while court costs can be between $125,000 and $200,000, said Meika Ellis.

Ellis, who is Gwich’in from Fort McPherson, N.W.T., is a lawyer at Ridout & Maybee LLP, a law firm in Ottawa, and practises intellectual property law.

Ellis said if an artist draws an eagle and another artist draws the same eagle, with similar colouring producing a similar painting, that would be copyright infringement. 

Copyright law, she said, hasn’t been litigated much in Canada and is more of a vague area of law than patent or trademark law, however.

She said anyone taking accusations of copyright infringement to court would need to prove their work was copied and if it was sold, proof it was sold.

Anyone taking work without consent from the original owner to reproduce, produce, translate, or sell, could fall into Copyright Act infringements, Ellis said.

CBC News presented Ellis the information it learned about the artists’ collective allegations against Rushnell and asked whether it would qualify as a copyright infringement.

“If all he’s doing is what it sounds like — he’s pulling somebody else’s painting and then adding his own flourishes to it — he is still infringing the other party’s painting and the other party does have a right to remedies under the Copyright Act,” Ellis said.

She said artists can try to protect themselves by making their ownership clear, through marking their work with a copyright symbol. 

She suggested artists entering into contracts with organizations clearly assert their ownership in any agreements they make.

“We need to educate people that Indigenous artwork is not something to be taken,” Ellis said. 

“There’s this mentality in the colonial mindset that Indigenous knowledge and anything associated cultural expressions are there for the taking because Indigenous people are ‘artifacts’ themselves.”