Raenelle Manning is an IPilogue Writer and 2L JD Candidate at Osgoode Hall Law School.

On April 5^th 2022, the Federal Court released its decision for ,a copyright infringement action concerning images of singer-actress, Jennifer Lopez. Prior to trial, this case commenced as a simplified action procedure, whereby evidence is adduced through affidavit.

The Plaintiff, August Image LLC (“August”) is a photographic syndication agency based in New 91��ɫ, USA. Generally, holds contractual agreements with various photographers to sell and license their photos for commercial and/or editorial use. ��For example, the allows users to purchase photos from categories like “beauty look book” or select photos from a specific photographer. In this case, August held a syndication agreement with the photographer of the Lopez portraits, Joe Pugliese, which granted them the exclusive and global right to sell, licence and promote his photographic portraits.

August asserts that the Defendant, AirG Inc, a Canadian social media brand, committed copyright infringement by reproducing six of Pugliese’s Jennifer Lopez photos on their without permission. They sought $22,412.45 in damages, which is the total license fee for the photos.

Why August image LLC’s Case Failed

The Court was satisfied that the photos were reproduced on the AirG website without permission. However, the Court ultimately dismissed August’s case because they failed to prove all the necessary elements of copyright infringement.

One of the central issues in this case was whether Joe Pugliese owned the copyright to the photographs.

According to the , the following conditions must be met for a copyright to be conferred to an author of an artistic work:(1) the work must be original; (2) the person must be the author of the work; and (3) they must, at the date of its creation, be either a Canadian citizen or a citizen of a signatory country on the Berne Convention (para 26). The provides that works created in one of the signatory countries must be given the same copyright protection in each of the other signatory countries as the latter grants to its own citizens. The United States is a signatory country. Although August was able to satisfy the first two criteria, they were unable to prove that Pugliese was a US citizen at the time that the photographs were taken. Therefore, he could not be recognized as a copyright owner, nor receive copyright protection under the Canadian Copyright Act. This factor was detrimental to their case.

Inadmissible Evidence

August did attempt to establish that Pugliese was a citizen of the United States. They supported this claim with the following evidence: the statement in Pugliese’s affidavit where he identifies himself as being “of Los Angeles, California”; a copy of the Copyright Registration Certificate (issued in the United States) which bears a California address and identifies him as a citizen; and the contract between August and Pugliese that also includes the same address.

The Court was not satisfied that any of this evidence confirmed that Pugliese was a US citizen in April 2015, when photos were created. ��The Court indicated that the standard affidavit formula requires a person to insert their name followed by an address. This was not admissible proof of a US citizenship. The same was true regarding the address listed on the 2012 syndication agreement between Pugliese and August.

The Court spent more time analysing the admissibility of the Copyright Certificate of Registration as evidence of Pugliese’s citizenship. In the affidavit, Pugliese indicated that he had registered the Jennifer Lopez photographs with the United States Copyright Office, as he typically does with his works.�� August asserted that this would establish Pugliese as the copyright owner and entitle him to copyright protection (para 46). Unfortunately, section 53(2) of the Copyright Act provides that only works registered with the Canadian Copyright Office will constitute as evidence that the copyright subsists and is owned by the registrant ��). Further, the Court stated that the statements regarding Pugliese’s citizenship and residence, in the certificate of registration, fell under the definition of hearsay (they were written by a person not involved with the case). The statements were also not accompanied by a declaration from Pugliese verifying the validity of the statements. Thus, the certificate was also inadmissible as to establish Pugliese as a US citizen and August was unable to prove that a copyright subsisted in the photographs.

Another Escape by AirG

In 2020, AirG was involved in a similar copyright infringement action, . ��There, Lickerish, a UK company that provides beauty, celebrity, fashion and model medial argued the AirG reproduced images of Meghan Markle on their website without authorization. The Federal Court also dismissed this case. The Court failed to establish ��copyright ownership — they were unable to prove that an exclusive licence existed between them and the photographer — and thus lacked standing to assert copyright infringement in relation to the photographs. ��Ultimately, it seems that AirG has yet again managed to escape an infringement sanction.

Further Reading

August Image LLC v AirG Inc. 2022 FC 470:��

Federal Court Dismisses Copyright Claim Due to Plaintiff’s Failure to Establish Ownership:

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Bandopadhyay argues that “while originality is widely accepted as one of the fundamental ingredients of a copyrightable work, the determination of originality with respect to photography is even more tenuous than with other copyrightable works, in ways that judicial decisions ignore and legal scholarship has left unexplored.” Photographs are protected under the Protection of Original Design in the , codified in the US under Title 17, Chapter 13. Canada extends protection to photographs as “artistic works” under the section 2 of the .

Connecting the Dots

The connection Bandopadhyay draws between intellectual property and disaster begins with his interest in how law produces meaning in society. He believes that law produces meaning by controlling the means of knowledge production, and therefore, the production of photographic documentation of disasters and catastrophes. He begins by recalling his work on a disaster management project for the past five years that exposed him to how states created and maintained power by using information-management strategies. Dating back to the mid-late 18th centuries, modern states emerged by devising rules, regulations, conditions and institutions that allowed for something called a “disaster” to occur. From this, these states could offer some explanation or interpretation over the disaster, creating the narrative behind each catastrophe. Through this act of control, Bandopadhyay believes, modern states could maintain power even when the state was unable to have actual control over that disaster. This study produced two findings; first, that disaster exists as a real “thing” and second, that disaster exists as an interpretive context over which various groups battle for power. For the purposes of his current project and to further his argument, he focuses on the second finding, supporting a more subjective and contextualized consideration of disaster photography.

It seems that the connection between visualization and disaster then comes down to the human factor of interpretation. Bandopadhyay highlights that if disasters are interpretive creatures, then visualization is very important because, for most of the world, visualization is how we relate to the world. We understand the environment, each other and therefore, ourselves, ultimately shaping what we see and whether we believe what we see. Intellectual property, or copyright specifically, is, therefore, the legal regime that controls the means of which visualization is produced, who gets to own, transfer, manage and monitor the property, and determine who can assign meaning to intellectual property. Bandopadhyay studies disaster photography in terms of copyright law because it helps us understand how a legal regime typically disassociated with catastrophic events can nevertheless have a role in how we perceive ourselves in relation to those catastrophic events.

Familiarly Unfamiliar

As everyday consumers, we deal with disaster photography more than we think. Bandopadhyay goes on to explain a more meaningful way that we associate disaster with imagery in what I would simply describe as a compare/contrast system with multiple photographs. For example, the Hurricane Katrina Memory Bank is a digital storage space, a concept of contrasting the past with the present using photograph that started to become more prevalent after September 11th. This storage space asks people from all over the world to submit photos of disasters that are first archived and then geographically pinpointed using Google Maps. The meaning in this process comes from the contextualization of the disaster photograph, allowing the user to tell and share their stories. This way, disasters become less anonymous and irrelevant, evolving into more of a personal connection between the online world and those originally affected by the disaster.

Originality Underexposed

Bandopadhyay believes that at the heart of all disaster photography is originality. The legal restrictions on using disaster photography begin to tighten because there is a risk of the after-disaster photograph being an original, copyrighted work. In the US, to be copyrightable, the work must pass what Bandopadhyay calls a “mythical bar” of originality that comprises of two components. First, the work must be an independent creation, and second, that the work requires “something more.” For such an important cornerstone of intellectual property protection, one would think the courts would have adopted a more defined understanding of what original means. Nonetheless, originality is a value for which we determine whether something is worthy of being copyrightable, therefore making originality one of the most important values to consider in photography.

Part of is his critique is that there is no consideration of a narrative when formulating that value. In comparison with the copyright laws of the most developed countries, most agree on the determinative factor of originality for copyright protection. In the US, the standard for writing, for example, is very low as any expression of creativity passes this bar. Bandopadhyay’s problem with this is that while there is agreement that originality is in the value of work, there is no direction as to how we determine originality, and for what reasons. In turn, this creates a need for comprehensive criteria to guide our determination of originality in photography.

The answer to his call may exist in some form within criteria first developed in the UK, adopted by the European Court of Justice, and then by Canadian courts. Although the US has not explicitly adopted this set of criteria, US courts use a very similar consideration set comprising of the (i) subject matter of the creation, (ii) originality and rendition, and (iii) originality and timing.

Subject Matter of the Creation

To help explain what “subject matter” means to US courts, Bandopadhyay points to case law, specifically to ., one of the most famous decisions that dealt with copyright and photography. In this 1884 case, Napoleon Sarony visited New 91��ɫ and took a series of photographs, one of which Burrow-Giles printed and sold 85,000 contrasted. Burrow-Giles Lithographic argued that although the Copyright Act extended to authors and writers, the provisions did not extend to protecting photographs. In this time, photographs were generally not regarded as artistic work, but instead, simple mechanical representations of reality. However, the Supreme Court disagreed with Burrow-Giles’ assessment of photography as non-art, for two reasons. First, the Court said the photographs are original works of art by drawing analogies, not to writing but to paintings. Second, the Court said the photographs represented an original scene because it did not exist before Sarony created the scene and it would not exist but-for Sarony’s creative input. For these reasons, Sarony was found to own the subject matter of the photograph, and found Burrow-Giles’ reproductions to be in violation of Sarony’s copyright.

Notwithstanding this decision, Bandopadhyay notes the problems associated with analogizing photographs to paintings. First, photography is not an art of arrangement in the same way painting is because, in a painting, the forms only need to relate to each other. Bandopadhyay claims that if he knew nothing of the world, he could see a painting and it could still exist and therefore function as a painting. He says he could then close his eyes, draw lines on paper and his creation could still count as a painting. On the other hand, in a photograph, not only do the forms of arrangement relate to each other, but they also relate to things outside of the photograph, in the real world. Bandopadhyay further claims that if he did not know what a tree looked like, then he saw a picture of a tree, the subject matter would not make sense to him. This is because of the reference to forms, in this example, a tree, are out in the real world, therefore creating a need for a precluding reference before the subject matter can be interpreted.

Photographs also possess a transparent element; we look at a photograph and tend to believe what we see. We also interpret photographs in different ways, admitting the image to mean different things to different people. This is where Bandopadhyay believes disaster photography “as a lens” is useful because this type of photography amplifies the typical reaction to the information and emotion we expect to take from a traditional photograph, making disaster photography automatically newsworthy. When we look at disaster photography, we believe the subject matter as truth. Disaster photography is then relied upon to serve as memories to those affected, and as a medium to invoke emotion from those who are not.

Contribution

To help explain contributory originality, Bandopadhyay gives the example of American photographer, , and her famed photograph. At the time, Lange was touring the United States in the mid-late 1930s, taking photographs of unemployed and poverty-stricken families to send to Congress, pressuring the government to send assistance to the displaced and migrant workers of America. She found this family in a small town and without much conversation or any questions, she took five exposures of the mother and her two children. The original photograph was taken at a very close range yet the woman was looking away with her children hovering towards her, as if the mother knew what the photograph was for. The purpose of the photograph was never verbally communicated by either Lange or the mother, but Lange claims the woman was an actual collaborator in the production of the photograph. In later years, the daughter of the mother agreed. Although the mother was not told how to pose, she knew what the photograph was for and knew how she was to look if the photograph was going to send the help she desperately needed. In this collaborative understanding, Bandopadhyay believes the benefits of viewing photography as a web of relationships, instead of a hierarchical structure, has shown to have great benefits for photography.

Originality as Rendition

’s famed explains how originality can be found in rendition. Bandopadhyay establishes that the mountain in the image is not real nature but instead, how Ansel wanted the world to perceive nature. Adam’s pre-visualized idea of a hyper-real nature was executed by his own form of editing, or pre-visualizing images, to see in his mind what he wanted to exist in the real world, then taking steps to make that a reality in his photographs. This photograph became synonymous with the natural wilderness and was a main symbol of the 1970s environmental movement. Bandopadhyay argues that the photograph became so well known because it established a reality that people were convinced by. People felt this was pure nature, contrasted by the grime and grain of the industrialization that was taking place in the United States at the time. Ansel spent months revisiting the same location, studying topography, weather patterns, and even exposure levels. Simply, the photograph was completely manufactured before capturing the image. This way, Bandopadhyay thinks, to say this is a rendition, and therefore something that is not a powerful creation of reality, any different than the creation of subject matter, is absurd because Adams convinced hundreds of thousands of people to put their lives on the line protesting; a reality indeed created by rendition.

Originality and Timing

Of the three factors, Bandopadhyay believes timing is the least strong claim to prove a photograph is original. The US Court explains this factor with a rather barebones justification using ’s ��to show that originality in timing creates no rights over the subject matter. The Court held that Mengelsen did not make the bear eat the fish, for if he stood there long enough and took enough photographs, he would have captured that same image. However, this is only one, a rather narrow, understanding of how timing can be determined to be original. Bandopadhyay gives four examples of alternative understandings of original timing. First, , the father of real-time photography, would wait until the moment of life would happen, or the “moment of equilibrium”, when everything would “click”, and then he would take the photo. Second, Cartier-Bresson, also waited for a moment, but more specifically, “a decisive moment when, if memory serves, the organization of forms and significance of events, coincides in the mind of the photographer.” Until these factors all came together, Cartier-Bresson would not take the photograph. Third, critic ’s perspective emphasizes a temporal element, “the choice is not between photography X and Y, but the photograph at X moment and Y moment,” incorporating context and environmental change into his consideration. In a more personalized perspective, explains “through an event has come to mean…something worth photographing, it is still the ideology, that determines what constitutes an event,” or in other words, photographers take on a gate-keeping role in determining what and why something is worthy of being photographed.

These alternate understandings allow for other factors such as culture to determine timing. Based on who you are, where you grew up, and what you think is important, non-numerical timing will shape if and when you decide to take a picture, making culture and personalized factors critical when discussing the concept of originality in timing. Bandopadhyay claims that entire disasters can pass without notice if people are not prompted to photograph it. He believes that although there are other ways to offer narratives on how originality can occur, when we try to find originality purely by looking at the subject matter itself, these important narratives fail to be considered when determining holistic originality. Excluding photography skills, social justice, personal and societal ideology, culture and other normative factors that might lead to a coherent narrative and justification for why something was photographed eventually become lost and irrelevant in US courts. Thus, Bandopadhyay rejects the notion that originality in timing, unless defined as Megelsen’s Catch of the Day, click-it-or-you-miss-it photography, is incapable of meaningfully contributing to originality.

Once we broaden our understanding of timing, it then becomes one of the most important features of a photograph’s originality. Bandopadhyay says that timing is capable of affecting us by evoking absence and a state of change. If we look at a photograph of disaster debris, it has little effect. But when we compare it with a contrasting photograph in a before-after comparison, we can then see the state of change, and both individual photos are given unique feeling and effect.

Bandopadhyay reiterates that timing makes contributions to the photograph and the only way to see that is when you allow originality to have a narrative. We have to understand that someone has put something in the photograph for a reason and we need to study why it was put there, otherwise, we risk fetishizing the photograph and the photographer.

Same Picture, Different Frame

In all, Bandopadhyay reiterates that post-damage disaster photographs do not have narrative when they stand alone. Otherwise, they are simply surveillance photographs with little purpose. We can rescue the unpurposive photographs by adding a narrative of some sort with a comparison that shows a state of change. The issue highlighted here is that many of the post-damage photographs are copyrighted, in effect, legally sheltering these images from adopting a fuller meaning and purpose.�� Bandopadhyay is . Ultimately, Bandopadhyay’s findings suggest the US Courts are missing the point of originality when labor, skill, judgment, attention and detail are left out of the conversation when making a determination of originality.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Leonard is a��photographer whose����is using an electron microscope to capture images of some of the smallest things imaginable, including cells, crystals, and tiny creatures. Stemtech is��a multi-level marketing organization with a����using adult stem cells.���ճ������by Leonard alleged that Stemtech initially approached him to licence one image for use in their publications, which Leonard agreed to, but that he was never fully paid for its use. Also, the agreement was for use only in their publications, and not on their website.

�ճ������further alleged that Stemtech used two images entitled "Scanned Electron Microscopy of Human Bone Marrow Stem Cells Images" on their website, and made them available to their sales and distribution network for use on their websites as well. When Leonard discovered the use by Stemtech, he sent them a cease and desist letter.�� Stemtech took��down the images, but refused to compensate Leonard. As such, Leonard started the action against Stemtech for copyright infringement.

The main form of relief sought by Leonard was damages suffered by him, and an accounting of profits by Stemtech. Or in the alternative, statutory damages.

The case was heard by a jury, which returned a����in Leonard's��favour��on all counts. In addition to a finding of liability for direct infringement, the jury also found Stemtch vicariously and contributorily liable for the infringement of Leonard's copyrights in both works. In this case, Stemtech was found vicariously liable for the use of Leonard's images by the company's independent contractors. The jury found that Stemtech had the right or ability to stop or limit their infringement, but��failed��to do so, while also having a direct profit or financial interest in the independent distributor's infringement. Furthermore, the jury found Stemtech had knowledge its distributors were directly infringing the works and intentionally induced them to do so.

Apart from the facts, the most interesting aspect of this case was the massive award of $1.6 million to the photographer. Leonard pled for actual damages, which would have been a combination of damage suffered by him as well as an accounting of��profits��by Stemtech. Under , Leonard could have elected for statutory damages, but was not able to do so, as he had not registered his works at the time of infringement. ��extends copyright protection to unregistered works, but requires registration upon commencement of an infringement action.

Damages under Canadian Law

The Canadian����operates in very much the same way. Under��, an infringer of copyright is liable for damages suffered by the owner, in addition to an accounting of profits not otherwise accounted for. Similarly to��, Canadian law allows for the copyright holder to elect for statutory damages instead of real damages at any time in the proceedings under��. The range of statutory damages in Canada is between $500 and $20,000 for all infringements by a commercial infringer of a single work. Unlike America, statutory damages are available in Canada without registration, and starting an action for infringement does not require registration of a work.

Implications

Without details of how the jury calculated the amount, it is difficult to comment on its appropriateness. However, another recent American decision resulted in a����for copyright infringement of another photograph, this time under statutory damages. These decisions beg the question of whether we will see a trend in enforcing copyright of photographs and if we will be seeing them enter the Canadian courts.

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

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Andrew Wood was photographed as he was leaving the annual general meeting of , which owns Spearhead Exhibitions, a company that hosts arms trade fairs. Wood is the media officer for and Wood had purchased a single share in Reed, to enable himself to attend shareholder meetings. Reed hosted an arms trade fair that CAAT objected to.�� Therefore Wood’s attendance at the fair was considered controversial by some onlookers. While the court said that taking the photographs was not a breach of Wood’s privacy, the fact that the police retained the photos for days after the event with full knowledge that no crime had been committed, or allegation of inappropriate behaviour, was the issue before the court. Two out of the three judges deemed the retention of the photos was a breach of privacy as per

In his judgment, Lord Justice Dyson effectively articulates the core of the argument within the case:

“In my judgment the interference with the appellant’s article 8 rights was disproportionate. In deciding whether the interference is necessary, the court must have regard to the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference.”

The Court of Appeal decision extends farther than police retention of photographs. , Michael Marper recently won the right to have his DNA records that were held by the UK Government destroyed. Marper was never charged with the crime that his records were held for. In response, the UK Government plans to make legislative changes that require records be destroyed 12 years after a person is arrested but not convicted of serious violent or sexual crimes and 6 years after all other crimes. that the proposed changes do not effectively distinguish between those who are convicted, under suspicion, or completely innocent. The government also did not outline a minimum standard for the destruction of DNA profiles and samples. In the 2006 case , the Supreme Court of Canada upheld the legality of police DNA databases, which includes retroactively collecting samples.��

DNA evidence is not used just for criminal investigations, but helps police identify victims of mass disasters using hereditary information from surviving family members. Family information can also be used to convict suspects. In April 2004, a United Kingdom resident became the first person to be convicted of a crime after the police . Cases such as these no doubt raise issues of genetic privacy. Even though a common argument for people who are in favour of police retaining information about suspects later cleared of charges is that the innocent should theoretically have nothing to hide, cases such as the one described above are a clear example that a breach of privacy of one person could have implications for another. While there is some evidence of trends within families towards criminal behaviour, such arguments would be quite controversial. Clearly the heart of the controversy involves the conflict between victim’s rights and offender’s rights. Organizations such as argue that, “Victim's rights should mean far more to all of us than the rights of those who victimize,” a standpoint that would likely be hard fast to survive in court. Should DNA testing be done when suspects are charged or only after conviction? Waiting until after conviction means that often those charged with crimes who fail to appear at trial could theoretically never have their DNA put into the database. It is also doubtful that obtaining samples at the time of arrest would survive a Charter challenge in Canada.

While the debate of obtaining DNA samples from suspects is not exactly the same as the debate about police retaining photos, both issues highlight the fact that the technology age is posing a new series of concerns for privacy that are unprecedented. As information is becoming more easily accessible and quickly transferrable from one person to another, privacy rights will be an ongoing issue both here in Canada and the United Kingdom.

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