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Posted in: Intellectual Property | Court Decision

Jul 19, 2018

The Value of a Copyrighted Photograph Is Not Necessarily in the Eye of the Beholder

By Ken Clark and Stan Fedun

In the May 2018 decision, Gaudreau c Néomédia inc., the Québec Small Claims Court considered the amount of damages to award for the unauthorized use of a copyrighted photograph.

The Plaintiff, Alain Gaudreau, is a freelance photographer. One of his photos was licensed to Le Journal St-François. As part of a “collaboration agreement” with the publisher, the Plaintiff received $20 for the photo.

On March 14, 2017, the Defendant, Néomédia Inc., republished the photograph without credit to or permission from the Plaintiff. On March 16, 2017, the Plaintiff sent the Defendant an invoice in the amount of $850.

The Defendant cried mea culpa and attributed the error to a new employee. It offered to pay the Plaintiff $100 or five times the amount the Plaintiff received from TC Media. The Plaintiff refused the offer. A few months later, on July 13, 2017, the Plaintiff’s lawyer demanded payment of $3,000 for pecuniary and non-pecuniary damages. The Defendant again refused to pay. They went to court.

The Court considered the amount of damages to award for the “unauthorized use of the Plaintiff's photograph and copyright” in light of the Defendant’s admission that the photograph was used without permission. In determining damages, the Court took into account:

  • The $20 compensation paid by TC Media to the Plaintiff for the use of the photograph (not the copyright in the photo);
  • The photograph was removed immediately by Néomédia when it was notified that the photograph was used without permission;
  • Néomédia did not (directly) profit from the photograph; and
  • Néomédia did not credit the Plaintiff when it republished the photograph.

The Court determined that the $100 offered by the Defendant was insufficient. It ordered the Defendant to pay $600, plus interest, and $100 for legal fees. The Court noted that in addition to compensating the Plaintiff, the damages were meant to act as a deterrent.

We note the lack of any analysis of statutory damages under s. 38.1 of the Copyright Act, nor any apparent claim being made for a breach of moral rights of attribution in this action. Given that this use was for commercial purposes and that the lower limit of statutory damages is $500, the amount awarded seems low, particularly given the legal expenses to take this matter to Court.

Photographers take note – there are other avenues to seek fairer compensation for a work.

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