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Photos on Social Media not 'Free' for the Taking

In a decision issued in January 2017, the Quebec small claims court provided a timely reminder to the media that photographs located via the Internet are not "free" for the taking: Saad v. The Journal of Montreal 2017 QCCQ 122.

The Facts

The facts were straightforward and commonplace:

  1. The plaintiff is a professional photographer who took several portraits of an individual identified as Mrs. Di Capo.
  2. The plaintiff retained copyright in the photographs, but authorized Mrs. Di Capo to post copies of the photographs on her Facebook page provided that she identified him as the author.
  3. A journalist selected two of the photographs from Mrs. Di Capo's Facebook page to accompany an article that she had written about Mrs. Di Capo.
  4. Although Mrs. Di Capo provided her consent, the journalist never seeks consent from the plaintiff to reproduce the two photographs and does not identify the plaintiff as the author of the photographs when they are published together with her article in both the print and online version of a local newspaper.
  5. The publisher of the newspaper refuses to compensate the plaintiff for reproducing the photographs without his consent as the author and owner of copyright.

Mistakes

The journalist's first mistake was that she sought permission from the wrong person. Although she was the subject of the photographs, Mrs. Di Capo was not the author or the owner of copyright in the photographs. She had no authority to grant permission to reproduce or publish the photographs in another medium.

The journalist's second mistake was that she failed to give credit to the author. By reproducing the photographs together with her article without identifying the plaintiff as the author of the photographs, readers would likely infer that she was the author of both the text and the photographs.

Ignorance of the Law is Not a Defence

The publisher and journalist first attempted to defend their actions by claiming ignorance. The court rejected this defence. To avoid liability on this ground, the defendants would have to establish that they exercised due diligence to avoid the infringement. The plaintiff was identified as the author of the photographs on Mrs. Di Capo's Facebook page, but since no effort was made to seek his consent the defendants could not satisfy their due diligence obligation.

Fair Dealing

The publisher and journalist then attempted to defend their actions as "fair dealing". The court rejected this defence as well. To qualify for the "fair dealing" exception under the Copyright Act, the defendants were obligated to at least identify the plaintiff as the author of the photographs in their publications. Since they failed to do so, the defendants could not qualify for the exception.

Moral Rights

As the author of the photographs, the plaintiff also had a "moral right" to require that he is publicly recognized as the author when his works are published. As a result, the failure to identify the plaintiff as the author of the photographs in its publications also constituted a violation of the plaintiff's moral rights.

Statutory Damages

Where copyright infringement has been established, the copyright owner may elect to receive either: (a) compensatory damages for his losses; or (b) statutory damages fixed by the court in a sum of at least $500 and not more than $20,000 for each infringed work. Here, the plaintiff elected to receive statutory damages.

Given that the defendants had since remove the photographs from its online publication and taken steps to avoid similar situations in future, the court awarded the plaintiff the minimum statutory damages in the sum of $2000 for 4 instances of infringement.