The Cost Of Copying Photographs From The Internet Just Got Higher

• Published date: 23 September 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Licensing & Syndication
• Law Firm: Cassels
• Author: Ms Jessica Zagar

A recent Federal Court decision, Rallysport Direct LLC v 2424508 Ontario Ltd.,¹ serves as an important reminder to Internet users that copying or scraping photographs found online without permission from the copyright owner, even if those photographs are relatively mundane, can give rise to a significant damages award.

In Rallysport Direct, both parties were in the aftermarket automotive parts industry. The plaintiff, RSD, argued that the defendants infringed copyright by copying its photographs and posting them on the defendants' websites. The photographs taken by RSD employees, depicted automotive aftermarket components and accessories, which were staged, assembled into kits, and positioned to enable customers to examine key details about the products to ensure compatibility.

Having concluded that the photographs were subject to copyright protection and that the defendants infringed copyright by copying and displaying the photographs on their websites,² the Court turned to the issue of damages. Under the Copyright Act, a plaintiff can choose to seek its damages and the defendants' profits from the infringement, or it can elect to receive statutory damages for commercial infringements in an amount not less than $500 and no more than $20,000 per work. For infringements for non-commercial purposes, the range is $100 to $5,000 for all works infringed. RSD elected statutory damages and sought damages in the amount of $500 per work.

As the Court stated at the outset of its analysis, statutory damages are recognition that actual damages are difficult prove in copyright cases and these types of damages awards are intended to both deter infringers and incentivize copyright owners to enforce their copyright. The prescribed range of damages can be reduced where there is more than one work at issue on a single medium and where awarding the minimum per work would lead to a total damages award grossly out of proportion with the infringement. The Court cautioned against conflating statutory damages with actual or probable damages, confirming that statutory damages encompass other factors, such as deterrence.

The Court determined that copyright economic loss considers the market value of the image. That value is not limited to lost licensing fees and can encompass production costs, including labour. Indeed, when copyright is infringed in respect of works that are created to sell another product, and not to be sold themselves, it is appropriate to look to the...