The news came as a shock to most Canadians last March: no more pennies. Finding the cost of manufacturing the peppy 1 cent coin to far outweigh its actual value, the Canadian government announced it would stop producing the penny in May 2012.

Enter Halifax-based folk music singer Dave Gunning. In his upcoming album, “No More Pennies,” Gunning attempts to deal with this national loss through a song containing lyrics about the coin. The album cover features a man in a coffee shop with pennies and other coins littered across the surface in front of him. The back cover is an image of the “tails” side of a 2012 penny, which is setting behind the clouds as if it were the sun.

At first, this use of the penny image had the Royal Canadian Mint up in arms: they claimed Gunning’s use infringed their copyright in the penny design. So, although the Mint stated it would allow Gunning to sell his first 2,000 albums without a fee, they threatened to charge him $1,200 for his next 2,000 sales.

Following a national newspaper campaign and “penny drive” to bring awareness to the Mint’s threat, the government agency backed down September 13^th, allowing Gunning to use the penny free of charge.

While Gunning, his fans, and the general public breathed a sigh of relief at this news, it is questionable whether the Mint had a viable copyright claim against Gunning’s use in the first place.

The penny design is protected in Canada under what is known as “Crown Copyright.” The “Crown” in “Crown Copyright” refers to the British Crown—currently Queen Elizabeth II—who is the official head of state of Canada, as well as all Crown organizations, departments, and corporations under her, including the Canadian Parliament and the Royal Canadian Mint. This special type of copyright under section 12 of the Canadian Copyright Act provides the Crown with a 50-year term of copyright protection following the first publication of a work “prepared or published by or under the direction or control of Her Majesty or any government department.”

Like its American counterpart, the Canadian penny has both a “heads” and a “tails” side. The current “heads” side of the coin features an image of the Queen that began circulating in 2003. Alternatively, the “tails” side of the penny features two maple leafs on a single branch, designed by W G. E. Kruger-Gray (his initials appear to the left of the leaf), as well as the denomination “1 CENT” on the upper outer periphery, and the word “CANADA” on the lower outer periphery. This image has not changed since it began circulation in 1948.

Among other things, Copyright is designed to prevent “copying” images belonging to another without that person’s permission. Thus, infringement of a copyright is contingent on that protected image actually being reproduced.  This brings us back to Gunning’s album cover.

The coins on the front of the album lie flat on a table. The ones closest to the camera are out of focus, and those further away are too small to see in detail. The only features to suggest these are pennies are the color and size of the coin: not the copyrighted design. As such, it is doubtful the Mint would be able to advance a successful claim for copyright infringement over the coins used on the front of the album.

Alternatively, the coin on the back-cover is clearly a penny: the “tails” side is visible in all its maple leaf glory. The problem with the Mint’s claim for copyright infringement over this image, however, is that they no longer hold copyright in that work. As mentioned above, the maple leaf image began circulation in 1948, and has not changed since. Because Crown Copyright only provides 50 years worth of protection, that means copyright in the maple leaf image expired in 2008: four years before Gunning used the image on his album cover.

And even if Crown Copyright hasn’t expired for the glorious cent, Gunning likely has a strong fair dealing (similar to fair use) argument under criticism and review (current section 29.1 of the Act).

A penny for those thoughts? Only if you can find one.

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