March 3, 2017
By Amy Dam and Catherine Lovrics
Clearing rights to use a photograph can be nuanced. A recent decision out of Quebec highlights the importance of clearing rights both of photographers as well as of people appearing in photos.
In Saad c. Le Journal de Montréal, 2017 QCCQ 122, Saad sought damages for copyright infringement from Le Journal de Montréal (JdM) for the unauthorized use of two photos taken by him. Saad had taken portraits of his friend for an exhibition and had given her permission to post the photos on Facebook as long she identified him as the photographer, which she did. JdM subsequently approached the woman to write an article about her rare medical condition. JdM obtained consent from the woman to use the photos in the article, but did not clear copyright, which belonged to Saad as the photographer. JdM published copies of the photos appearing in the article which was published in print and online, without attributing the photographer.
JdM raised two defences, neither of which prevailed. Saad was awarded $2,000 in statutory damages.
The first defence JdM argued was that it did not have knowledge that its use of the photos would amount to infringement. (Knowledge is required for "secondary" infringement under ss. 27(2) of the Copyright Act.) JdM argued it believed that it was sufficient to get authorization from the woman appearing in the photos. This was despite the fact that the photographer’s name appeared on the photos. The Court held that JdM, who was accustomed to clearing rights, had cut corners and had not taken all reasonable measures to ensure it had all necessary rights to use the photos. In other words, the Court found that JdM should have known the use was infringing. (We note that primary infringement does not have a knowledge requirement and JdM's reproduction of the photos would appear to have also amounted to primary infringement.)
JdM also argued that it was fairly dealing with the photos for news reporting. This argument failed because the news reporting exception, like exceptions for criticism and review, requires attribution, and specifically that the source be mentioned, and if given in the source, the author of the work (or performer, maker or broadcaster of other subject matter). In this case, the news reporting defence was determined unavailable both because no attribution was given to the photographer and also because the use of the photos was found to be secondary to the news and thus not for the purpose of news reporting.
The case highlights the importance of extra care when clearing rights to photos taken from social media to ensure clearance of both copyrights and moral rights in photos, as well as rights relating to who and what appears in the photos (including personality/publicity and privacy rights of people depicted).
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