On April 6, 2018, a bus carrying the Humboldt Broncos junior hockey team with another vehicle en route to a playoff game. Fifteen people were killed, including seven members of the team. Residents and were deeply disturbed by the tragedy and expressed their overwhelming sadness at the loss of so many lives in such a horrific accident.

Responses to the tragedy have ranged from to tributes at and . One reaction, which became widely circulated soon after the incident, was a simple yet powerful by Halifax Chronicle Herald illustrator Bruce MacKinnon. The cartoon depicts the province of Saskatchewan, personified in green hockey gear, injured and being escorted off the ice by other provinces dressed in red. The illustration communicates the importance of mutual aid and empathy to our collective Canadian identity. However, soon after MacKinnon’s cartoon was printed, Redbubble.com, an Australia-based online store that manufactures consumer products based on user-submitted artwork, featuring the illustration without the artist’s permission.

Not only is MacKinnon livid his artwork is being used without his consent, the artist is also . Mackinnon did not submit his own art to the website: someone else did, and would have, therefore, wrongly received royalties from any sales of the T-shirt by Redbubble.

While Redbubble removed the shirts once the Chronicle Herald threatened a lawsuit for copyright infringement, dozens of memorial T-shirt designs . Moreover, while indicating that artists may set up their designs to benefit charities, there is no evidence this is the case with any of the Humboldt Broncos merchandise.

Redbubble.com is one of many platforms that produce specialized consumer products like T-shirts, throw pillows, and bed-sheets based on user-submitted designs. Others include Design By Humans, Society6, and Teepublic. For struggling artists and cost-conscious consumers alike, these websites offer a novel way to disseminate original creative ideas around the globe while providing compensation to artists for their hard work. However, the Humboldt Broncos cartoon controversy demonstrates the drawbacks such websites have for artists. Because websites like Redbubble are open platforms based on user-submitted content, these companies exert little control over what users upload unless the sites are informed that the submitted design(s) is infringing an existing copyright.

Such companies often put the onus on users to ensure that submitted content does not infringe copyright or other intellectual property (IP). For example, the

“Ultimately, you take full responsibility for the works you upload and display on Redbubble. This is reflected in the��. Use of the Redbubble website indicates continued acceptance of this Agreement. So please do us all a favour and if someone has created or owns the rights to a picture, painting, photograph, logo, story, poem or any other work, copyright, trademark or publicity right […] obtain consent before you use that work.”

As inspiring as many of the opportunities afforded by these sites may be, the potential remains for the work of artists—who do not wish to have some, or all of their creative productions commercially reproduced on a pack of coasters—to be misappropriated for the benefit of others.

There is nothing wrong with artistic adaptations, where, for example, another artist wishes to create a downstream interpretation of a previous artist’s work, transformative in nature, and then uploads that metamorphized piece to be printed on T-shirts and bedsheets. This is firmly within the boundaries of , if not in Canada. We live in a visual culture of appropriation and both explicit and implicit creative dialogue. The Supreme Court of Canada acknowledged this concept in , wherein Justice Ian Binnie stated, “�ճ����Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”[1] From my angle, this may mean that, for better or for worse, artistic dialogue could involve being inspired by works manufactured in the spirit of a completely different creative objective than what the original artist might have intended.

The current form of web-based art marketplaces, like Redbubble, seems ill suited to prevent verbatim copying. As the uploading of MacKinnon’s cartoon indicates, certain people’s intentions may not be particularly honourable. It may be that the design in question was uploaded by a single person seeking to create a T-shirt for themselves—but this detracts little from the reality that these art platforms can be used by opportunistic individuals with morally questionable motives. Perhaps it is time for these websites to develop methods of concretely verifying a piece of art was created by the artist uploading it, rather than simply allowing people to sign up and upload as they please and dealing with copyright infringement issues only as they arise.

Elias Rabinovitch is an IPilogue editor and JD Candidate at Osgoode Hall Law School.

[1] Théberge v Galerie d'Art du Petit Champlain, Inc., 2002 SCC 34 at para 30, [2002] 2 SCR 336.

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Although the US Federal Court, where was litigated, awarded copyright to Mr. Slater in 2015, the two parties nevertheless agreed that he would donate 25% of future profits from the photograph to causes supporting the conservation and protection of Indonesian Crested Macaques, the breed of the monkey that took the photo. The litigation has served as a test-case in the question of whether non-humans can be the owners of copyright and whether this could be used as a vehicle for increasing animals’ legal rights.

The case turned on whether the Naruto had sufficient standing under US federal legislation to bring a claim of copyright ownership in a US court. PETA argued that the definition of “persons” has intentionally been left undefined in Title 17 of the United States Code and the Copyright Act of 1976, which governs US copyright law. As a result, they argued that the intention of US lawmakers was to allow a flexible definition of personhood for the purposes of copyright and that this empowers the court to interpret “person” to include animals.

Mr. Slater contended that his work in setting up the equipment for the monkeys means that they he effectively created the photographs and therefore is entitled to their copyright. He was also able to rely on previous US case law concerning animal rights, specifically , wherein the court stated that if animals are to be granted standing to sue, legislators must clearly state this in the relevant legislation. The court also pointed to (“the Compendium”), published by the US Government, which courts are obliged to follow when interpreting copyright law. It is stated at several points in the Compendium that copyright ownership is limited to human beings.

Based on the above factors, the US court sided with Mr. Slater, stating that copyright ownership for animals is a legislative decision and that Congress must amend copyright legislation and clearly state this for it to be effective. This means any changes to animal rights with respect to copyright issues are policy questions that the legislative and executive branches must address.

Although the District Court ruled that animals lack standing under copyright legislation, the decision was inconclusive on the novel issue of whether animals can be subject to copyright ownership. Therefore, PETA appealed the ruling. The appeal was heard in July 2017, with a decision forthcoming. However, a of the appeal proceedings shows the judges questioning PETA on several points, including whether PETA has a sufficient connection to the monkey to represent her (the monkey was previously represented by a primatologist at the District level). Slater’s counsel also noted that there were questions of whether the identity of monkey that took the photograph had been sufficiently ascertained, with Slater alleging that a different monkey altogether had taken the photo. The parties went on to argue over other novel copyright-related questions, such as whether the monkey’s offspring would inherit the copyright (two informative articles on the appeal and more bizarre details on the case can be found from the Hollywood Reporter, and ).

Mr. Slater has that legal fees from this case have bankrupted him and he notes that he would have been prepared to make such an offer to settle, but PETA initiated the litigation without first contacting him. Had the two parties attempted to negotiate an agreement, this issue could potentially have been settled years ago and more money would have been donated to conservation efforts.

Whether PETA continues to pursue this case further remains to be seen, but as we discover more about the intellectual capabilities of non-humans, the question of whether a non-human can own intellectual property will likely persist. The decision by the US courts suggests that any extensions of intellectual property rights to animals will be done through lobbying at a political level to the legislature and not through legal arguments to the judiciary.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Following the publication of the famous photo on Twitter, many groups and individuals weighed in on who might actually��hold the copyright in the photograph. Twitter is for users that, “You retain your rights to any Content you submit, post or display on or through the Services”, but did Ellen own the copyright in the first place?��, American , and the felt the original copyright holder was Bradley Cooper, as he was the��smartphone camera holder and operator. Photographers often hold copyright in their works because, in most cases, .

The Associated Press�� that Ellen Degeneres held the original copyright as they�� for their editorial use of her selfie. American entertainment lawyer Eric Spiegelman ��that Ellen holds the copyright��because��she is the ultimate producer of the selfie. “At that moment, the services of Bradley Cooper were employed by Ellen Degeneres for some non-financial compensation (the added fame of being a part of Hollywood history, perhaps),” states Spiegelman.

Legal Week brought up��an important point that few within the entertainment industry raised – defined in . In that legislation, it states that a work created within the scope of employment is the property of the employer. At first blush, it’s unlikely that a selfie would��fall within the scope of show-hosting duties; however, it’s in the realm of possibility that such works could have been foreseen and included within the contract between Degeneres and the Academy of Motion Picture Arts and Sciences. Others thought Samsung own the photo as part of its $20M advertising and technology supply with the Academy as one of the program’s sponsorship deals.

Ultimately, it doesn’t much matter for the average social media user. As an Amercian legal blogger in her post, commentators can use the image under the US’ fair use exception.

Fair use – as outlined in – provides a list of exceptions to what might otherwise be copyright breaches. Included in this list are situations where the��use of the work is for criticism, comment, news reporting, teaching, scholarship��or research. It also sets out the following four factors that should be considered to determine��if the use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
   
   

The coverage of the copyright debate provides a relevant example of what could fall into any of the criticism, comment, news reporting or teaching fair use exceptions. Many of the outlets have implicitly relied on this law when posting up a copy of the selfie alongside their coverage.

The Canadian Comparison

It’s my opinion that the laws in Canada are similar when applied to the "Ellen Selfie" case.

The initial question would be one of contract law – and specifically whether any of the clauses within Degeneres’ hosting contract with the Academy or Samsung’s sponsorship contract with the Academy assigned the rights to this work. emphasizes that works made under the course of employment can mean that the employer would be considered the first owner of copyright.

Barring this, then the debate boils down to whether the creator of the photo was Degeneres or Cooper. Both sides offer compelling arguments, and a potential outcome could be that the stars are co-authors in copyright as joint collaborators (particularly as two artists participating in live art creation at an industry event). It’s possible that the additional actors featured in the photo could make a joint authorship claim. But as participants further removed from the production and posting of the photo, the more interesting aspect of legal rights for them would be under the topics of privacy and personality/image rights, which are not at issue in this blog post.

Ultimately, as in the US with their fair use exception, fair dealing would cover most Canadians’ usage of the photo. Sections 29, 29.1, and 29.2 of the cover exceptions to copyright infringement related to research, private study, education, parody or satire, criticism or review, and news reporting. A generous interpretation – as argued by the Supreme Court in , and – supports Canadian news outlets and social media users wanting to share and comment on the Oscar photo. Similar to the US’ factors for evaluating fair use, the Canadian common law has six factors it considers, outlined in CCH:

1. The purpose of the dealing;
2. The character of the dealing;
3. The amount of the dealing;
4. The alternatives to the dealing;
5. The nature of the work; and
6. The effect of the dealing on the work.
   
   

Conclusion

As an avid follower of copyright jurisprudence, the most exciting part of the Oscar seflie debate has been the very existence of the debate itself. To see so many bloggers and mainstream news outlets covering the question of copyright in the photo has been incredible.

Copyright literacy is crucial, especially for countries and industries that fancy themselves knowledge based or rich in arts and culture. Copyright debates left exclusively to the domain of lawyers diminish the important social and cultural ramifications of such debates.

Because let’s face it, no selfie from a legal awards event has ever been retweeted three million times.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher supported by the GRAND (Graphics, Animation and New Media) NCE.

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Negative Publicity

So far the only reported enforcement by King of CANDY had been��against��, who made the game "" [now titled "All Sugar Casino Slots - Jewels Craze Connect: Big Blast Mania Land"]. However, the news of King looking to trade-mark CANDY drew attention to past instances of King attempting to enforce their intellectual property rights. This included�� against Albert Ransom, the maker of the game "" based on King's acquisition of the CANDY CRUSHER trade-mark.��[Ransom's open letter on the CandySwipe website detailing King's moves against him has since been taken down.] There has also been growing for King's attempts to the registration of trade-marks incorporating SAGA, as potentially confusing with King's SAGA trade-mark.

Whether these separate actions by King to enforce their intellectual property rights were conflated with their application for CANDY, or just polarized the public against King, there has been a massive public backlash against King. Numerous and ��were flooded with statements decrying King's actions, and a����to stop/revoke King's registrations of CANDY and SAGA gained almost ten thousand supporters. Despite an�� by King attempting to defend their actions, the public reaction seemed clearly against King.

What Did King Give Up?

King's application to the USPTO to��register the CANDY trade-mark initiated a����where any interested parties can file an opposition to their registration on various grounds. It was during this period that King voluntarily��abandoned��its registration of the trade-mark, meaning the USPTO will no longer consider granting them the mark. As a result, King will not obtain a registration for the word CANDY and any future actions they intend to bring against others with regards to trade-mark infringement/damaging of goodwill would have to be brought under the common law tort of passing off.

Why Did King Drop the Mark?

From a financial perspective, there are few reasons for a successful developer such as King to stop pursuing registration of a mark or allow for its obtained registrations to be taken off of the register. The only of which are the application and maintenance fees, both of which are less than a few hundred dollars. On the other hand, actively defending a trade-mark requires��monitoring��the industry for unauthorized use, and using various enforcement measures to avoid dilution. While this can be a large financial burden, the result of failing to "police" owned registrations allows for the loss of��distinctiveness in the trade-mark. This opens up the possibility for others to challenge a registration and potentially strike it from the Registrar.

In a��, King stated that the reason for abandoning the CANDY mark was because it was no longer needed in light of acquiring another mark,��CANDY CRUSHER, which they believe is effective in defending their intellectual property rights. While this may be true, it is not hard to imagine that public pressure resulting from their initial application could have played a part in making this decision for the burgeoning game developer.

Not All About the Law

This move by King shows how intellectual property rights-holders often need to consider many factors in creating and adjusting IP and business strategies. While owning a trade-mark for CANDY would significantly strengthen King's position from a legal perspective, there were likely other considerations King weighed against that benefit leading them to decide that owning the trade-mark was not in their best interest. The tale of King and their CANDY trade-mark is a good cautionary tale for other rights-holders, in particular regarding the public relations implications that may come from an��aggressive��intellectual property strategy.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at the University of British Columbia.

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Dispute Details

The Typo Keyboard is a $99 iPhone case that attaches an extended QWERTY keypad to the bottom of the phone. The accessory’s keypad closely resembles that seen on BlackBerry devices.

Blackberry filed the lawsuit with the US District Court for Northern California, the home state of Typo’s operations. The filing accuses Typo of infringing keyboard patents , , and . BlackBerry is asking for an injunction as well as an eventual jury trial.

������������������’s Position

������������������’s claims rely on two main points, namely that the Typo keypad is a clear and intentional misappropriation of ������������������’s trade dress, and also that the trade dress is a key and distinctive part of Blackberry’s value proposition. (Trade dress is a term of art referring to an item’s visual characteristics which act as a source identifier. The concept is similar to the "distinguishing guise" in Canadian trade-mark law.)

“This is a blatant infringement against ������������������’s iconic keyboard, and we will vigorously protect our intellectual property against any company that attempts to copy our unique design,” said BlackBerry General Counsel and Chief Legal Officer Steve Zipperstein about the suit. “From the beginning, BlackBerry has always focused on offering an exceptional typing experience that combines a great design with ergonomic excellence,” continued Zipperstein. “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”

������������������’s outlines in great detail, and with images, its keyboard’s intentional design functionality. Shapes, curves and frets are all included in the intellectual property rights that BlackBerry holds and argues Typo’s keyboard infringes.

Typo’s Response

Typo argues that the QWERTY keyboard is too long-standing to be patented, and that they put significant work of their own into creating their product.

Typo initially responded with this comment to :

“We are aware of the lawsuit that Blackberry filed today against Typo Products. Although we respect BlackBerry [sic] and its intellectual property, we believe that ������������������’s [sic] claims against Typo lack merit and we intend to defend the case vigorously.��We are excited about our innovative keyboard design, which is the culmination of years of development and research.”

Author Analysis

I have to admit, even as a BlackBerry fan, I found Typo’s initial messaging compelling. It seems unrealistic for there to exist a patent on a QWERTY keyboard slapped onto a mobile device. Surely the degree of ubiquity is such that any specifications can’t matter immensely.

������������������’s filing, however, outlines the extensive thought and detail poured into its keyboard. Reading the filing is like catching a glimpse of the recipe for Blackberry's "secret sauce".

Lines like, “… the Bold featured the use of curved bars (referred to as “frets”) above each row of keys. Each of the keys in the top three rows is a roughly square shape, and arranged like the keys on a piano, without any significant space or material between them horizontally,” and “The Q10’s physical keyboard continues to incorporate bars above the rose of keys having the distinctive sculpted appearance of the thumb-optimized ergo-surf design,” make it apparent that the BlackBerry keyboard was not a happenstance success, but rather a major consideration in ergonomics and design.

More to the point, to me it seems as if the Typo keyboard is a direct replication of this design. In that opinion, I am not alone; the tech community also the similarities.

Even Seacrest hinted at the genesis of the Typo keyboard in . When the interviewer commented, “So it’s the best thing about the BlackBerry, within the iPhone,” Seacrest's response was: “That’s kind of how this came to fruition.”

������������������’s confidence in their claim is evident in their choice for jury adjudication. It takes a strong claim to believe that a citizen jury will appropriately comprehend the basis for a claim in a technology patent case. But again, based on the detail of ������������������’s intellectual property rights and the initial response of tech commenters openly admitting the design similarities of the devices, the claim appears to have merit.

From a legal perspective, the most rational response is likely for Typo and BlackBerry to settle, with Typo paying a portion of profits to BlackBerry in design royalties.

From a business perspective, however, BlackBerry may wish to take this to court to permanently shut down Typo’s production. In the grand scheme of the smartphone wars, allowing the existence of any product that allows non-BlackBerry devices to sport a Blackberry-esque keyboard is a threat to BlackBerry's market share and profits. The smartphone market is intense, with companies involved constantly jockeying for positions better than the rest; BlackBerry could easily decide that committing to a legal battle and winning it outright is more important than ceding any ground that will undermine its competitive advantage.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

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The internet is not a lawless wild west. Images on the internet are not automatically public property – copyright, personality rights and all other aspects of the law apply. This article will list out the most relevant areas of the law and then analyze the situations of international dating using Canadian headshots for dating or porn site advertisements according to the each legal point.

Relevant Canadian Law to Date – A Primer

Scraping in the Law

The issue of general material scraping arose in the 2011 Supreme Court of British Columbia case . The court struggled with defining scraping in order to apply the law to it.�� The judgment included the opinion of law Professor and copyright expert in explaining that scraping content was allowable if it was indexed and transformative. Indexing is a broad term for the interconnectedness of the internet through hyperlinks and meta data that web crawlers use for searching and organizing internet material. Because the judge found the scraping in the Century 21 case qualified as a form of indexing, the issue of whether scraping was transformative was not relevant to his decision. Professor Trosow’s comment directly quoted in paragraph 53 of the judgment remains helpful,

“The relevant question in my view is whether the materials are being utilized in a transformative manner in order to provide a usable and informative aid for the end-user searching for information about listings.”

The judgement includes a thorough legal summary of the concept of transformation – which I will summarize as any change that adds something new to the original expression, thus creating a new work. The concept is used primarily in American law, but was also referenced and described in the 2002 Supreme Court of Canadsa��case, .

International Servers and the Law

The Supreme Court confirmed copyright liability for servers outside Canada. 2004’s stated, “A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country.” This is a digital extension of of the ,

27. (2) It is an infringement of copyright for any person to […]��(b) distribute to such an extent as to affect prejudicially the owner of the copyright. […] a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. [emphasis mine]

Responsibility Regardless of Intent

The Small Claims Court of Yukon disregarded the “accident” defence in a 2012 digital website photo theft case that closely mirrors the Rehtaeh Parsons one at hand. A tour operator photo ended up on the website of its direct competitor. As stated by the Court in paragraph 12 of ,

“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website.�� However, it is not a defence to the present action that the copyright infringement was inadvertent.�� The plaintiff is still entitled to damages equal to the loss he suffered from the infringement."

Personality Rights and a Person’s Image

Identity exploitation is also a tort that is potentially relevant to photos on the internet. As I’ve outlined in a prior about a recent digital extension of personality rights,

The Ontario Court of Appeal’s 1997 decision outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise.

At the root of this issue is the principle from the 1977 Ontario Supreme Court Decision that stated

". . . it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded."

Photo Privacy in Quebec

is not within the digital sphere, but it is applicable as with regards to personality rights issues. Here in 1998, the Supreme Court confirmed, using the Quebec Civil Code and the Quebec Charter, that there is privacy infringement whenever an image is published without consent if the person is recognizable. It is unclear if such a ruling would hold Canada-wide, but it is a possibility.

Fair Dealing

The Canadian law provides for copyright violation in cases of fair dealing in .��Research, private study, education, parody or satire, criticism or review, and news reporting are all justifications for works use that do not infringe copyright. Some recent court interpretations of fair dealing law were recently released by the Supreme Court in��,�� ���Ի���. Taken as a whole, they confirm a generous interpretation of fair dealing that asserts the user right as a defence. This is particularly true of the enumerated education principle, which has now been broadly expanded to more closely match the US’ fair use exemptions for academic institutions.

User Waivers from 3^rd Party Photo Hosting

Some social media sites from which the photos are scraped require users to give up their personality or photo rights. There has yet to be a common law case in Canada or the US on the issue of personal social media site waivers. There are two closely related cases, decided divergently.

The 2012 US case , determined that website waivers are most valid when they require an affirmative acknowledgment of the contract. Conversely, in the 2011 Canadian case the Supreme Court of British Columbia determined that where there was an industry standard as such, proceeding into a website without express agreement could constitute a contract.

Application to Cases Like Parsons’

In my opinion, I don’t think dating or porn sites that use images of Canadian women have a strong legal case to defend themselves from potential legal action. Using the prior list of relevant legal issues, I will make a cohesive argument in favour of the Canadians whose images are used in these advertisings.

Scraping and the Law

The photos may be scraped off a prior website, but they are likely not indexed or hyperlinked to that prior website. The creators of these advertisements likely want there to be little link between the original source photo and the eventual advertisement featuring the photo. Thus, by the definition presented in Century 21, the photo reuse is a new type of non-indexed scraping.

Without indexing, the only remaining argument is transformative. The advertisement creators could argue that by adding in additional text – in the example of the Parsons case “"meet Canadian girls and women for friendship, dating or relationships” – that the addition is significantly transformative. I would argue that because the advertisement doesn’t change the photo, but just adds or overlays texts, the advertisement is arguably drawing attention to the original work rather than creating a new work.

International Servers and the Law

The Supreme Court statement from�� is helpful because it keeps open the possibility that Canadians whose photos are in circulation on any server around the world can potentially use the Canadian legal system to defend their rights. In the case of the Parsons dating site, which was based out of Vietnam, it means that Canadian courts could go after the Vietnamese infringers.

Responsibility Regardless of Intent

�ճ���� case is an indicator of the direction courts might take in response to plaintiffs claiming ignorance. This is immensely important in regards to technology-based conflict. It’s important for court judges to demand parties in a conflict demonstrate a reasonable amount of understanding of and responsibility for their actions. In the case of dating site administrators, it’s my strongly held opinion that “I didn’t know it wasn’t okay to take photos of young women off the internet and put them in my Facebook ads” will not protect these parties as it is consistent with the general legal axiom that ignorance of the law is an unacceptable defence.

Personality Rights

Identity exploitation also presents a strong tort for Canadian victims of image scraping. To have one’s photo used in an advertisement without consent meets the Krouse and Gould threshold because the dating or porn site garners a commercial purpose. The advertisement facilitates traffic for new member signups on the porn or dating site. In the advertisement at hand, Parsons likeness is clearly captured; it is unmistakably her face.

Photo Privacy

Similarly there is a strong case when the�� precedent is considered. That said, there is a chance it might not hold for victims outside Quebec, as indicated by the use of Quebec-specific law in the judgment.

Fair dealing

It’s my opinion that image scrapers would be hard-pressed to find any fair dealing justification for their activities in either the Copyright Act or even Supreme Court decisions expanding user rights via fair dealing.

I don’t believe companies trolling the internet for photos – with software or by hand – have the protection of a fair dealing defence. Writ large, I feel the culmination of all recent, major copyright cases in Canada makes clear this principle of application; whether the fair air dealing exception is applied broadly or narrowly based on the public good or commercial profits accrued. The more public good provided, the more broad the fair dealing exception. The more commercial profits provided, the more narrow the fair dealing exception. By this broad, over-arching principle, the use of Canadians' images by dating and porn sites provide us little public good but do provide the site administrators profits. Instinctively, the companies using these images would face a more narrow application of the fair dealing exceptions.

But this conceptual analysis is insufficient to discard fair dealing altogether. To dig into the heart of this legal matter, the companies engaging in this behaviour would have to prove that their dealing falls within one of the enumerated principles of fair dealing, and then would have to prove, by a contextual analysis of the facts, that their dealing is fair in accordance with the six factors as elicited in :

• the purpose of the dealing;
• the character of the dealing;
• the amount of the dealing;
• the alternatives to the dealing;
• the nature of the work; and
• the effect of the dealing on the work
  
  

It is my opinion that it is unlikely for the analysis to surpass the first stage of the fair dealing test, as the dealing does not fit into any of the (research, private study, education, parody, satire, criticism or review, and news reporting). However, if it were to pass this stage of the fair dealing analysis, it is my opinion that a contextual analysis of the facts would result in a finding that no fair dealing exists in this case. I would arrive at this conclusion by arguing that there are legitimate alternatives to the dealing (models could be hired and photoshoots done by the advertisers), that the amount of the dealing is unfair (pictures are being substantially reproduced), that the character of the dealing does not support fair use (pictures are being used for commercial gain), and that the effect on the work is prejudicial (the images and the reputation of those pictured are potentially harmed).

User Waivers from 3^rd Party Photo Hosting

Dating and porn sites may have a strong argument if they only scrape Canadians’ images from third party websites or social media networks with sign-up contracts that ask users to waive rights to their likeness. This legal reality may be unpopular in the court of public opinion. concerns about the tension between consumer rights and lengthy digital contracts. A movement is burgeoning to demand more proactive and legible terms to be disclosed to consumers. Services to of these contracts and rumours of apps in development to provide layperson translations to contract legalese showcase the problems that these contracts pose.

I would tend to agree. In my opinion, these contracts are unreasonable because they are extremely lengthy and overly legalistic. The majority of users are not able to understand these agreements, which is a big problem. It also points to potential invalidity due to the unconscionability doctrine.

To start, there are many seminal “ticket cases” in the UK that call into question contracts where one party does not adequately appreciate the terms of the contract such as the 1970 case . 


Similarly, Canadian contracts can be set aside for inadequacy of consideration or unequal bargaining power ( and ). contains a lengthy list of factors to consider in order to properly assess bargaining power: a plaintiff’s ignorance of business, illiteracy, ignorance of language of the bargain, blindness, deafness, illness, developmental disabilities, and other similar challenges. is another foundational case in Canadian unconscionability law. A more holistic approach to bargaining inequality, recently emerged in , where the Supreme Court said there is no definitive list of factors; courts should be alive to conditions of the parties circumstances, unique pressures and situational vulnerabilities. Meanwhile, focused on the “distress of the weaker”, and ��used the word “disparity” in its analysis of unconscionability.

Whether the highest ranking or recent cases lay out a definition of unconscionability that would cover third party website waivers is uncertain. I do believe – for some more-vulnerable users – our growing reliance on the largest social media sites and their ubiquity in our day-to-day lives may meet the power imbalance threshold required for unconscionable bargaining. The more users depend on a service for the function of their day-to-day lives, the more the potential for imbalance and disparity in bargaining power. Dependancy creates bargaining weakness.

Two Systemic Criticisms: Statutory & Social Failure

In my opinion, lack of political action and social concern are failing young Canadians who don’t want to show up in an advertisement for an online dating or porn site.

I.���������������������������� The Statutory Problem: Not Going After the Scrapers

There exist easy alternatives to image scraping. There are to access free images. Governments should take steps to protect individuals – both by demanding websites only accept advertising from companies who agree to ethical photo sourcing standards and by establishing a regime to police and crack down on scrapers. Scrapers operate with software and servers from countries around the world, so it would likely be necessary to create a global framework of international agreements to combat this activity. It would be onerous, but I believe it’s worth the work involved.

II.����������������������The Social Problem: Blaming the Photo Posters

In observing the aftermath, the Rehtaeh Parson’s case has caused a rash of victim blaming mirrored by that seen in many cases of sexual violence. For instance, the of the Parsons image scandal ended with an inappropriate call-to-action for increased conservatism in photo posting. A media professor from Queen's University says the unfortunate use of Parsons' image in an ad could be a "teachable moment" for parents trying to instruct their children to be vigilant about uploading photos to the internet.

"We are in a new day where people think that if they find something on the web it's free to use, and that's not necessarily the case," she says. "In this case, we're seeing the hurt that that can cause."

In another instance, the included a similar warning from the Ontario Privacy Commissioner.

"Ann Cavoukian, Information & Privacy Commissioner of Ontario, described what happened with Parsons’s image as a 'strong reminder that we can rarely control the use of our pictures once we share them online.[']

'The unfortunate reality is that people give out far too much information about themselves, believing that their information is ‘private’ and they are safe behind their screen. You are not!' Cavoukian said in an email statement to the Star.

'We all need to take steps to protect ourselves online, especially on social networks,' she added. 'Young people must be especially careful to consider the potential risks, and make it a practice to only post photos that they want everyone to see, including strangers and prospective future employers.[']

'If not, don’t post it!'"

Given that Canada has not acted to regulate against scraping of its citizens’ photos, it’s disappointing to me that the go-to response to the Parsons photo misuse was to tell people to be more careful about what they post online rather than condemn and go after the wrong-doers. I believe it’s a particularly insensitive approach when you consider the root of the Parsons case. Rape culture tells young women to avoid walking alone, to watch what they wear, and to restrict their own liberties in order to avoid sexual violence. Rarely does it focus on .

Here, where we should have a vigorous call to go after those social media sites and scrapers who expropriate and commoditize photos of young women, we are instead turning to young women and telling them to restrict the images they put online.

I conclude this post with , Rehtaeh’s mother, written in response to uncovering the dating site photo. It makes the link between photos and human rights better than I can.

"It is disgusting that even in death, my daughter's image is still being exploited. When I see these violations, whether it be the singles ad stealing Rehtaeh's photos -- or the people who contact me and to say negative things such as she should not have been drinking, she was a troubled teen, she was in the wrong crowd -- I sit back and reflect on the reality of who Rehtaeh truly was. Then I think: So what if someone is a troubled teen or was drinking -- as if their behavior or emotional state somehow give permission for others to abuse them."

Denise Brunsdon��is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine. She is also the social media volunteer at Sexual Assault Centre London.

The post Dating Sites Scrape Internet for Women’s Photos, Including Those of Deceased appeared first on IPOsgoode.

Hudson’s Bay objected to registration of the following design marks based upon its prior use and registration of various BAY and BAIE marks:

and

In 2010, the Trade-Marks Opposition Board sided with Beymen, finding, on a balance of probabilities, no reasonable likelihood of confusion between the above marks and those previously registered by Hudson’s Bay, “primarily because of the Mark’s inherent distinctiveness and the differences existing between the parties’ marks which outweigh the other factors in the present circumstances.”�� On February 5, 2013, Justice Hughes of the Federal Court released his reasons in and and partially reversed the holding of the Board.

In so doing, Justice Hughes applied the same test that the Board had, saying that the determinative issue was the likelihood of confusion between the trade-marks sought to be registered and the various BAY marks.�� Before the Board, The Bay had only evidenced copies of its various BAY registrations and nothing further.�� On appeal, however, it filed two further affidavits attesting to the extensive use and promotion of its BAY marks, and the state of the Register with respect to third party BAY marks.�� The nature and quality of this further evidence was considered by Justice Hughes to be significant, allowing him to consider the matter de novo instead of reviewing the Board decisions only on the basis of reasonableness.�� Justice Hughes also noted the Supreme Court of Canada decision in �� decided after the Board’s finding in this case as further support for the matter to be addressed de novo.

In assessing the likelihood of confusion, Justice Hughes followed the approach outlined by the Supreme Court in Masterpiece, namely what is the first impression in the mind of the casual consumer, somewhat in a hurry, with an imperfect recollection and without close examination.�� Justice Hughes specifically repeated the instruction of the Supreme Court that “[n]either an expert, nor a court, should tease out and analyze each portion of a mark alone. Rather, it should consider the mark as it is encountered by the consumer – as a whole, and as a matter of first impression.”�� He quoted the following from the Supreme Court:

[84]�������� However, considering a trade-mark as a whole does not mean that a dominant component in a mark which would affect the overall impression of an average consumer should be ignored: see esure Insurance Ltd. v. Direct Line Insurance plc, 2008 EWCA Civ 842, [2008] R.P.C. 34, at para. 45, per Arden L.J.�� This is because, while the consumer looks at the mark as a whole, some aspect of the mark may be particularly striking.�� That will be because that aspect is the most distinctive part of the whole trade-mark.�� In this case, contrary to the view of the expert, the most distinctive and dominant component of the marks in issue is in all cases the word “Masterpiece” because it provides the content and punch of the trade-mark.�� The word “Living” is bland by comparison.

There has always been an underlying tension between these two instructions of the Supreme Court - that a mark must be considered as a whole and as a matter of first impression, but yet that a dominant component should not be ignored – because to determine the latter necessarily involves, at least to some extent, deviating from the former.�� This tension is clearly evident on these appeals as Justice Hughes concludes at the outset that the essential part of the trade-marks sought to be registered is the word BEYMEN, and that the essential part of the Appellant’s registrations is BAY or BAIE.�� The result is that the analysis undertaken “is that of likelihood of confusion between BAY or BAIE and BEYMEN”, and not between the applied for design marks as a whole and each specific BAY registration.

Some have suggested that this approach to the confusion analysis, the identification and subsequent weight given to a dominant component, combined with Justice Hughes’ explicit and deliberate avoidance of “a slavish conformity to section 6(5)” of the Trade-marks Act, creates greater unpredictability in assessing the risks of confusion.�� However, in my view, the analytical approach undertaken by Justice Hughes is really no different than that which been undertaken for more than a century.�� Perhaps Justice Hughes was more clearly explicit in stating that there is no “rigorous formula” to determine likelihood of confusion, but that does not change the test, it merely acknowledges that this is nothing more than a “judicial determination of a practical question of fact” (to quote Justice Ritchie from ).�� In other words, it is a question that has always been answered by ordinary common sense with all its inherent unpredictability.

Kelly Gill is a partner with Gowling Lafleur Henderson LLP, a graduate of Osgoode Hall Law School, author of Fox Canadian Law of Trade-marks and Unfair Competition, appeared before the SCC on behalf of the appellant in Masterpiece, and sits on the IP Osgoode advisory board.

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Case Synopsis

Three fashion photographers were��assigned to photograph fashion shows in March 2003 by la����, a professional union established in 1968 by French fashion houses that oversees the taking and distribution of photographs from their runway shows.��The photographers put these photos up on a website of their choice, violating the image copyright held by la��Fédération.��The photographers argued to the ECHR that the copyright restrictions – and subsequent French court fines of €255,000 for violating these restrictions – infringed freedom of expression rights under Article 10 of the European����of��.

26. Les requérants soutiennent que des photographies de défilés de mode constituent une « information », et que leur diffusion sur un site Internet relève de l’exercice de la liberté d’expression même si l’objectif poursuivi est commercial. Ils ajoutent que les lourdes condamnations prononcées contre eux caractérisent une ingérence dans l’exercice de cette liberté…

In my opinion, the ECHR handed down a fair and balanced judgment. It dismissed the appeal, discounting the expression argument because the photographs were used for a commercial nature unrelated to public debate. At the same time, however, the ECHR maintained that in cases where a public value is demonstrated, freedom of expression could trump copyright.

32. Sur ce dernier point, le Gouvernement souligne que les Etats disposent d’une marge d’appréciation plus importante lorsqu’il s’agit de restreindre l’expression sur un sujet qui ne relève pas d’un « débat d’intérêt général ».��Or, d’une part, la médiatisation et le caractère public des défilés de mode ne suffiraient pas à en faire un sujet de cette nature. D’autre part, les photographier ne reviendrait pas à contribuer à un débat de nature politique ou sociale ou à mettre en cause une personnalité publique.��Selon le Gouvernement, il n’y aurait aucunement atteinte aux droits et libertés fondamentaux de quiconque si de tels événements devaient ne pas être médiatisés. [Emphasis added]

Wrote Professor��of Ghent University ���Ի�����of Copenhagen Business School on the official��,

It is, in other words, no longer sufficient to justify a sanction or any other judicial order restricting one’s artistic or journalistic freedom of expression on the basis that a copyright law provision has been infringed. Neither is it sufficient to consider that the unauthorised use, reproduction or public communication of a work cannot rely on one of the narrowly interpreted exceptions in the copyright law itself…

Additional background commentary in English is�������Ի���.

Canadian Comparison

There are two key distinguishing factors in the Canadian legal system that would impact how a similar case would play out domestically.

First, there is uniqueness to our judicial infrastructure as compared to France.��Decisions of the highest domestic courts in each EU member country are subject to������ECHR; EU laws and courts supersede French courts. In Canada, however, the decisions of the Supreme Court are subject to no further judicial review; case appeals – based on������challenges or any other grounds – are firmly decided by our country’s highest court. Any photographers levied a fine by the Supreme Court of Canada would not��have��the opportunity to appeal to a similar��multi-national human rights court.

Secondly, our������would likely determine the matter in contract law, and in much the same way as did the French court. The Copyright Act section 13(1) gives the author of a work first ownership rights, unless section 13(3) is invoked, which emphasizes that work created under a contract so stipulating can remove first ownership from creators.

Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright.��Under Canadian law, much of the result would depend on whether the specific facts militated towards an interpretation that the employment agreement was a contract of service or a contract for service.

Section 13(3) only applies if the work was created under a contract of service (, not to independent contractors, who work under a contract for service (). Factors to consider when evaluating the degree of independence of an employee include the creator’s control over accomplishment of the task, the creator’s ability to hire assistant staff, the system of compensation, or the amount of tools or materials provided by the creator ().

Certainly these creators would try to argue that a union photography contract isn’t a contract of service or apprenticeship, but without an explicit agreement to the contrary, my opinion is that the argument would likely fail on the facts.

The photographers had little leeway in terms of how to complete their task. They runway shows were predetermined and the photographers had to show up when and where the shows were happening. Their overall agency in the experience was minimal. Certainly the photographers by use of their own personal camera and positioning can impact the photographs, but within a much larger artistic experience dictated by others; the setting, the staging and the infrastructure of the showcases were not within the control of the photographers. Moreover, the photographers had no ability to engage in additional sub-contracting. The system of accreditation was tightly controlled, and far outside the photographers' control. Quite honestly, their role was to point and click.

And generally speaking, the idea of claiming to be an independent contractor is antithetical to the notion of a union contract. The issue is where the contract sat on the spectrum of autonomy. Certainly a union contract by its very nature leans more toward the idea of employees and association as opposed to independent, solo contracting. A union photography job would, in my opinion, best be interpreted as a contract of service and the authors would consequently not own the copyright.

Conclusion

Ultimately, I believe the content and balance of this decision is strong. Non-commercial freedom of expression is a right that should be interpreted widely.

The EU multinational legal structure is an interesting scenario, but not one that I would choose for our continent. My skepticism of American juristic culture aside, a domestic court that factors in adverse systems of oppression unique to a country’s borders and history while still following international human rights trends seems like the better balance.

Denise Brunsdon is a JD/MBA Candidate at Western University.

The post The copyright claws come out in EU catwalk photo battle appeared first on IPOsgoode.

Music Canada also runs the (i.e. certifying when a record has made platinum). Although famous for their efforts to strengthen copyright laws, copyright is not all that Music Canada does. For example, one of the initiatives Graham mentioned is in the area of ticketing/towing bylaws. When musicians play in clubs in Austin or Nashville, there are dedicated “artist loading zones” where the artists can park and load their equipment. The same is not true in Toronto. Many small clubs have very limited loading zones, and limited nearby parking. A single parking ticket can wipe out an entire night’s profit for some musicians, making it very difficult to practice their craft.

Another Music Canada concern is improving relations between the City of Toronto and the music industry to a similar level that the film industry has with the city. ��For instance, the helps arrange location permits, police presence, emergency medical services, tax credits, and other services for film and television shoots on fairly short notice. In comparison, no such program exists for the music industry.

For example, Graham told a story about how the held in Toronto attempted to obtain a permit for . The planning process was initiated 8 months before the concert date, and the final permits to use the square did not come through until 3 days before the concert. As one might imagine, by that point the acts had been booked, media announcements had been made, etc. The organizers were taking a massive risk - had the permit not come through, the concert would have had to be cancelled, and the organizers would still have been on the hook for all costs – without the associated profits.

“Music is one of the most open formats in the universe, for all the credit they get for it.”

When asked what the biggest accomplishment from the recent Canadian copyright reform initiatives was, Graham didn’t cite digital locks or TPM protection, or the new part of the legislation targeted at pirate sites. The greatest accomplishment, he said, was the fact that we passed a bill at all. While there may be disagreement on the content of the reform, one thing many agree on was that copyright reform itself was badly needed. After three previous failed attempts, the fact that Bill C-11 passed in a global political climate where other copyright focused bills crashed and burned (e.g., and ), was nothing short of miraculous. “Our government passed a bill when SOPA and ACTA failed.”

He pointed to that stated that if the government enacted the bill, DRM would “lock up” content. It has been months since bill C-11 came into force, even longer since it was passed, and this assertion has not been true, at least with respect to music. To this day, music remains one of the most open, consumer-friendly content industries, a fact that Graham thinks the music industry does not get enough credit for. Today, music is sold in one of the most open, flexible formats available. The restrictive DRM you may find on other types of media is not present here. When you buy a song on iTunes, or elsewhere, you can play it on any device you own, anywhere you want, at any time you want.

There are no complicated digital hoops to jump through in order to satisfy a DRM mechanism or prove that you have the right to use the content you paid for. There is no need to purchase a new device that supports the DRM format of the file you purchased. Moving a song from your computer to an iPod (or a cell phone, laptop, MP3 Player, tablet, etc.) is as simple as cutting and pasting a file. It is truly a consumer’s dream.

There were in the music industry, but they were uniformly abandoned. It all comes down to history and market expectations. When the CD was introduced back in 1982, it was in a DRM free format. Conversely, as Graham notes, “the first DVDs were locked up, and people accepted that. But how many times do you re-watch a DVD?” It’s hard to watch a movie while jogging, or when you’re at work. But the same isn’t true for music. Many people listen to music throughout their entire day, playing the same songs over and over again. They take their music with them everywhere they go. Such behaviour requires a level of flexibility and convenience that would be very hard, if not impossible, to achieve with DRM protected content.

But it’s not just consumers that benefit from the openness of the music industry, its other artists too. “When you publish a song, that is fair game to create a cover.” When was the last time anyone tried to create a cover of a movie? Or a TV show? Or even a book? Well, with a song, you can.

Another thing Graham says the Canadian music industry deserves credit for is their response to the problem of piracy. While the to sue consumers in the US, these types of lawsuits are notably absent in Canada. And Canadian consumers mainly have Graham to thank for that.

“My policy was, we shouldn’t be suing people while we’re waiting for legislation.”

When Graham took over CRIA (as Music Canada was then known), there were a few brief lawsuits that went through the federal court system. This resulted in that basically stated that downloading music was legal in Canada. These lawsuits were appealed to the Federal Court of Appeal, not because of an intention to follow through with suing their customers, but as Graham noted “we simply had to appeal it to set the record straight.”

And they eventually did. The Federal Court of Appeal ended up . At that point, the music industry could have continued the lawsuits against the individual downloaders directly, however, they chose not to.

“The US did it to make a point. Because they had been polling people and practically everyone thought that downloading was OK. The objective was to make the point that, NO, it is illegal.” Similarly in Canada, there was pressure from a lot of sources, including independents and artists, to initiate a similar series of lawsuits, or otherwise send the message that downloading is illegal. But Graham decided to take a different route. “My policy was, we shouldn’t be suing people while we’re waiting for legislation.” Graham instead decided to focus on lobbying the government to pass copyright reform. It was hoped that a renewed message from Parliament, in the form of the passage of a new copyright bill and all the media coverage surrounding it, would send a message to Canadians that downloading music without compensation was not appropriate. To continue a lawsuit against consumers while lobbying for legislation would taint that process, attract undue notice and probably wouldn’t even work to curb downloading ().

Today, there are more ways to consume music than there ever was. From buying a CD in stores, to single song online retailers like , to digital radio services or even streaming subscription services like and , it has never been easier to get the music the music you want, how you want it, whenever you want.

“They are the canary, the first down the coal mine.”

The music industry has come a long way since it began. Usually it is on the forefront of the culture industries. Music was the first industry to switch to digital with . The MP3 player was the first digital media player. Digital download stores like iTunes started with music sales.

But with this innovation came its own set of problems. Graham joked that “they are the canary, the first down the coal mine.” Music had to forge its own path. And, for the most part, it has succeeded.

2013 marks the first year in over a decade that , and have even risen slightly. When asked for the reason for these changes, Graham cites many factors. Copyright reform is an issue, not just for any advantages the law provides, but for the fact that the law was actually passed. Canada is a law abiding country, and when the government sends a message that downloading is illegal, people take them at their word.

Digital music now , and labels are just getting better at marketing into this space. There are also more legal music services in Canada than ever before. As legal options for purchasing music are becoming easier and more convenient, consumers are changing their purchasing habits to include more paid music and less illegal downloads. But things are still not ideal for the music industry.

“There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].”

The addition of more legal services in Canada is a good thing, but they are contributing a very minute portion to the overall revenue picture as yet. For example, streaming services, at least as they exist today, do not represent a sustainable model. This unsustainability is due to the fact that streaming services usually only pay out fractions of a penny per stream.

He points to a now famous exchange between the band Grizzly Bear and their fans. In it, the band emphasises the fact that . While this generated the usual “your music stinks” or “go on tour” comments, many fans were also interested in how they could help. For those who are unaware, Grizzly Bear is a somewhat well known indie music band. They have played sold out shows at Radio City Music Hall yet .

“We have to build this back up for our young artists. They are aware that [older musicians] used to have homes, but now they can’t afford that.” Graham notes that many young artists are missing the same benefits given to artists in music’s heyday. “There was a time when even if you never sold another CD anywhere else in the world, you could still make a living in a middle class life [in Canada].”

One of the goals of Music Canada is to “create an environment where you can earn your living as a musician.” There are many ways to do this that fall outside the traditional realms of copyright and digital media. For example, ensuring that there areartist loading zones for bands as mentioned above. Cities and governments can also provide tax incentives to record albums in Canada, similar to the .

And it’s harder to earn a living as a musician today than it was a few decades ago. One of the main problems, of course, is copyright infringement.

“The musical middle class is at risk.”

Of course, copyright infringement has an effect on the industry, Graham noted. But the conversation needs to get away from copyright infringement or, as used in the popular vernacular, piracy. People don’t like to talk about piracy, but people care about artists. “I think the conversation needs to switch to… the effect of the digital age.”

One of the first policies Graham initiated as soon as he took over Music Canada was no lawsuits. So how else could they mitigate piracy? One way is to go after the pirate websites themselves. They do this by attacking their sources of funding. that advertise on pirate websites, and like MasterCard, Visa and PayPal.

When asked what message he would have for Canada’s youth, Graham’s message was simple: “support your artists.” As noted, there are fewer artists today that are able to own their own home and make a living in the industry. “The musical middle class is at risk.” Music plays a big part of our lives. Imagine games without music? Movies without music? When major events in your life happen, songs are playing. “Understand that the creation of music is not easy.” There are thousands of good jobs, where people go to work with nothing other than music and making careers work for people in their mind. “It will help you get through your depressions; it will help you get through your joy. To the government, it will create jobs, help the tax base and bring tourists to our great nation. Music can help you, and you can help music.”

Mark Kohras is an IP Osgoode alum and the current Features Editor for IP Osgoode. For more coverage of Graham Henderson and Music Canada, see our blog on Graham’s .

The post How Music Can Help You, And You Can Help Music – An Interview With Graham Henderson appeared first on IPOsgoode.

According to the facts of the case, General Motors (“GM”) used an image of Einstein in an advertisement in November 2009 in which Einstein’s face was digitally pasted onto a muscled physique with the catchphrase “Ideas are sexy too.” The Hebrew University of Jerusalem (“HUJ”) claimed ownership of Einstein’s publicity right under Einstein’s will. As a beneficiary, HUJ would have the exclusive control of the exploitation of Einstein’s name and likeness. HUJ brought an action for unauthorized use of Einstein’s image. It is important to note that the will is silent regarding the devise of any right of publicity, and Einstein did not claim or receive any monetary compensation for the use of his persona during his lifetime.

In March 2012, the Court allowed HUJ to proceed to trial in order to prove that GM had violated Einstein’s, and consequently HUJ’s right. HUJ sought a ruling as to what New Jersey’s highest court would likely determine to be the postmortem duration of that state’s common law right of publicity.

Einstein died while domiciled in New Jersey. Under , California's postmortem right of publicity statute is limited to California domiciliaries. Thus, the Court looked to New Jersey's right of publicity law. Under , the duration of California’s statutory postmortem publicity right is 70 years. In the state of New Jersey, the issue of duration was discussed only in the case . However, the court did not decide the issue. The court in Presley found that the state legislature was to determine the question of duration and that the federal could be of assistance.

In this case, Judge Matz concluded that “the New Jersey Supreme Court would likely find that the postmortem right of publicity endures no more than 50 years after death”. According to the Court’s reasoning, a maximum of 50 years postmortem duration was found to be “a reasonable middle ground” for a deceased celebrity’s heirs to make use of the right of publicity and benefit from it. Further, Judge Matz found that the Court’s ruling “aligns with the majority of current state statutes limiting the right’s postmortem duration”. Finally, the Court found that its decision properly balances the “meaningful enforcement” of a celebrity’s right of publicity and “the public’s interest in free expression”. Judge Matz denied HUJ’s motion and dismissed the complaint as untimely filed.

In Canada, the right of publicity can be found under the term “tort of appropriation of personality” defined in . Under Canadian law, celebrities receive a preferential treatment, as opposed to ordinary people, since their rights are considered to be property that can be licenced or transferred, and that is descendible to the estate after death. As Prof. Vaver puts it in the second edition of his Intellectual Property book: "[d]eath brings no respite: fame survives the grave”.�� Former IPilogue Editor Anna Shahid . Quoting the famous decision in , she concluded:

“[T]he personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’”.

Moreover, the Trade-marks Act stipulate that if the deceased’s “portrait or signature” is used for trade purposes without the estate’s permission, then legal action may be taken up to thirty years after death. Finally, under the Copyrights Act ss. &, an author’s works may be protected by its estate from being “used in association with a product, service, cause or institution” until the copyright expires.

The situation changes though when commercial appropriation of personality is considered under the various Privacy Acts in Canada. The statutory right is more limited for celebrities than its common law counterpart, and it dies with the person without being transferable. Like in the United States, personality rights in Canada are limited by public interest values such as freedom of expression. Therefore, the courts always need to strike a balance between those two fundamental rights in order to avoid strengthening one to the detriment of the other.

Albert Einstein, like , now belongs to the public. His persona as the symbol of genius may be freely appropriated and is bound to survive death for many years to come.

Georgios Andriotis is a second year law student at Université de Montréal.��

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