Evidence is a key ingredient in protecting your content
Content creators Shoichi (Marc) Matsumoto (known for No Recipes) and Shen (Nami) Chen (known for Just One Cookbook) claimed copyright and moral rights infringement against Canuck Eats (a Canadian food delivery service) when Canuck posted their food photos on its website without permission.
The Federal Court awarded Matsumoto $6,000 in actual damages and $2,000 in punitive damages after finding copyright infringement of 2 photos. The Court dismissed Chen’s claim because it appeared her company owned the relevant photos (rather than her personally). The Court also dismissed both creators’ claims for moral rights infringement.
Chen’s Lack of Standing
The owner of a copyright holds the economic rights provided by the Copyright Act, including the right to sue for infringement of those rights. The author of a work can be the first owner of copyright. However, if the author assigns their copyright to another person or company, they are no longer the owner.
Based on the “Permissions” page and copyright footer on Chen’s blog, the Just One Cookbook company appeared to be the owner of copyright in her allegedly infringed photos. The Court found Chen had not shown she had authority to assert copyright infringement in her own name. For example, there was no evidence of an assignment from Just One Cookbook back to Chen or an agreement concerning copyright. This case highlights the importance for content creators to ensure they have records concerning ownership and use of any intellectual property, especially if litigation is possible.
Infringement of Matsumoto’s Photos
By contrast, the Court was satisfied Matsumoto was both the author and owner of his allegedly infringed photos. Matsumoto provided evidence that he photographed and uploaded the images to his blog. On the “Photography” page of Matsumoto’s blog, he claimed copyright in the photos and offered to license their use. The footer of the blog included a statement “Copyright © 2024 Marc Matsumoto. All rights reserved.”
The Court was also satisfied that Canuck Eats reproduced Matsumoto’s photos without permission based on screenshots in connection with two Oshawa restaurants.
When assessing actual damages, the Court considered Matsumoto’s and Chen’s evidence of typical licensing fees. The Court noted that there was only evidence of 2 uses for each of Matsumoto’s photos. The Court awarded $3,000 per photo, for a total of $6,000, to Matsumoto. The Court did not award any damages to Chen.
The Court also awarded Matsumoto what it called “modest” punitive damages ($2,000) in view of the limited evidence that the conduct was deliberate, not inadvertent, for commercial benefit and persisted over an extended period. The Court agreed that deterrence was important.
Moral Rights Infringement
The Court dismissed both creators’ claims for moral rights infringement. In Canada, the author of a copyrighted work has two “moral rights” (see Copyright Act, s 14.1):
- “the right to the integrity of the work” and
- “the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous”.
These rights are only held by the author of the work (e.g. the direct creator[s]) and cannot be assigned. The Court assessed moral rights infringement of both Matsumoto’s and Chen’s photos.
To show infringement of the right to integrity, the Court held a plaintiff must show that there has been prejudice to their honour or reputation (see also Copyright Act, s 28.2(1)). While the author of a work may provide evidence to establish subjectively how their honour or reputation has been affected, there must also be objective evidence of the prejudice alleged.
Here, the Court found the Plaintiffs provided no objective evidence of prejudice. For example, the Court found the following were subjective statements from Matsumoto:
- “Unauthorized use of my photographs suggests an association that I have not approved, potentially damaging my professional reputation.”
- “This loss of control can harm my artistic reputation, particularly if the photographs are used in ways that conflict with my brand values or aesthetic standards.”
The Court also found that Chen’s references to a loss of exclusivity and unauthorized use that diminishes uniqueness, devaluation of Chen’s work, missed business opportunities and loss of control were all subjective assessments.
The Court could not conclude that distortion or mutilation of the images occurred because, when visually comparing the screenshots provided to the photographs on Matsumoto’s or Chen’s blogs, any cropping or resizing appeared minimal. While the quality of the images in the screenshots was not as sharp and clear as the original images, the Court found the graphics on Canuck Eats whole website have the same look.
Moreover, the Court found that the right to association is infringed where a work is attributed to someone else. In this case, none of the images had been attributed to another individual or entity. The Court also noted that Chen’s watermarks appeared on some of the images.
A copy of the decision can be found here.
