Jim Allen is a freelance Toronto photographer. In 1985, Saturday Night magazine engaged him to shoot a cover photo of Member of Parliament, Sheila Copps. At that time, Copps was considered to be somewhat of a renegade Parliamentarian, and to capture that flavour, the shot depicted her dressed in leathers, astride a Harley-Davidson motorcycle. The photo appeared on the cover of the November 1985 issue. Allen was paid $1,800 for his services.
In 1990, the Toronto Star featured an article on Copps, then a candidate for the national leadership of her political party. The Star's article was illustrated by two photos of Copps, intended to contrast "before" and "now" versions of her. The first photo was a replica of the 1985 Saturday Night magazine cover. The second was a current photo of her dressed in conventional clothing addressing an audience.
The Star did not seek the permission of Allen to use his photo, and Allen sued for copyright infringement. The trial judge decided in favor of Allen, awarding him $900 in damages, the fee he would have earned had permission been sought. The Star appealed, and recently the decision of the Ontario Court of Appeal was handed down, deciding in favour of the Star.
The appeal court decision provides an excellent analysis of important aspects of copyright law, and is well worth considering.
Allen argued before the courts that he had only granted Saturday Night the "first rights" to the photo. He said that Saturday Night had "the rights to use my transparency in any way, shape or form (they) felt fit to put onto that cover for...first time usage." Allen backed up his claim that additional usage entails additional fees by showing that he subsequently resold usage rights to the photo to others many times for a fee.
The Toronto Star conceded outright that Allen owned the copyright in his photo. However, the Star asserted that a separate copyright existed in the entire cover of the magazine, and that the second copyright was owned by Saturday Night and not Allen.
The appeal court held that there were two copyrights involved, the first in the photo itself, and the second in the magazine cover as a cover. Each had a separate copyright owner, with the "magazine cover (being) a separate and distinct artistic work..." The court further stated that while the photo is an important component of the magazine cover, "Allen does not own or have a legal interest in the copyright in the magazine cover."
The appeal court arrived at this conclusion, in part, by examining the evidence. While Allen was engaged to shoot the photo, the evidence showed that he had no input into the magazine cover. The decision to have Copps dressed in leathers, atop a motorcycle was that of Saturday Night. The photo selected for the cover by the art director was one of many taken by Allen during two photo shoots. Decisions related to integrating the photo into the cover (layout, type sizes, styles, positioning and cover text) were made by the magazine's art director. Allen was not involved in, and had no control over the process by which the magazine cover was created.
So, the court concluded that the cover was an original work, created by the skill, labour and judgment of the magazine's art director and editor. The cover had its own copyright even though it was made up of constituent elements that others owned the copyright to, apart from the cover. Allen could not control the cover's separate copyright; only the magazine could.
However, the case did not end there. How could the Toronto Star use Saturday Night's copyright without the consent of Saturday Night?
To answer to that question, we have to delve into the Copyright Act a little deeper by examining the Act's "fair dealing defence." This is a complicated little defence, so you may want to receive legal advice before invoking it. In a nutshell, it allows a person to use another person's copyright without their consent if the purpose of that use is for private study, research, criticism, review or newspaper summary.
The appeal court noted that the use of the Saturday Night cover by the Toronto Star was related to then current news, that being the political leadership aspirations of Ms. Copps. The Court agreed that the contrast between her then current image with the image she had portrayed in her early days as a Parliamentarian was the thrust of the article and therefore "the purpose of its reproduction of the cover was to aid in the presentation of a news story and not to gain an unfair commercial or competitive advantage over Allen or Saturday Night." As a result, the Star did not require the consent of Saturday Night to use the cover since the use they put it to was a fair use as defined by the Copyright Act.