Copying online images to cut corners can come at a cost

Intellectual Property /
John Simpson
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By LegalMatters Staff • Scraping photos from the internet to use with an online business is not only unscrupulous but can also be costly, as a Federal Court judgment illustrates, says Toronto intellectual property lawyer John Simpson.

In Rallysport DirectLLC v. 2424508 Ontario Ltd., Justice Janet M. Fuhrer recently awarded $357,500 in statutory damages and $50,000 in punitive damages for copyright infringement on 1,430 photographs.

Fuhrer relied on several decisions in her judgment, including Collett v. Northland Art Company Canada Inc., a copyright case involving photography that was successfully litigated by Simpson in 2018.

Could provide clarity

Simpson, principal of IP and new media law boutique Shift Law Professional Corporation, says Fuhrer’s ruling is “significant” and could provide clarity in awarding damages in similar copyright infringement actions.

“This is a noteworthy case for the general public as well as for copyright lawyers,” he tells LegalMattersCanada.ca. “It recognizes how simple it is to infringe copyright through the internet. Given the ease with which modern technology can be used, there is a real need to deter infringers with significant exposure to damages.

“It’s going to be the leading case on statutory damages in Canada because of the way the judge very usefully boils down the case law into a set of principles and shows how those principles can be applied,” Simpson adds. “It will make the awarding of statutory damages much more predictable.”

He says the case involves “a particularly egregious example of what frequently happens on the internet and should serve as a warning to online businesses who engage in this type of activity in varying degrees of bad faith.”

Photos used on competing website

Both parties in the case were aftermarket auto parts dealers displaying photographs of products on their websites. The plaintiff created its own photographs which the defendant used on its competing website.

Fuhrer found that the defendant infringed on the plaintiff’s copyright “by unlawfully electronically reproducing and displaying” the plaintiff’s photographs on the defendant’s website.

Simpson says the issue of website operators copying photos from other sites is “unfortunately a very common phenomenon.”

“These cases reflect the attitude of many online businesses. They don’t see that there’s a lot of value in photographs,” Simpson says. “More and more photographs are seen as merely informational linking type content. You click on a photo of a carburetor, for example, and it links to a description and a price.”

However, whether those who copy photos realize it or not, the images are copyrighted material, he says.

According to the evidence in the case, the plaintiff spent about $370,000 producing the photographs.

Cut margins

“If the defendants spent nothing in comparison because all they did was copy the plaintiff’s photographs, then they could sell their products for a lot less. They don’t have that additional cost of doing business,” says Simpson. “Many online businesses are looking for a quick way to make some money. They want to cut their margins as much as possible. Their attitude is they are not selling the photographs.”

He says the case illustrates how “statutory damages” operate to compensate copyright owners.

“Statutory damages are built into the Copyright Act in recognition of two important things when it comes to enforcing rights,” he explains. “First, it can be difficult to prove damages and often even when you can prove damages, they’re not material enough to justify the cost of litigating.”

However, that doesn’t mean it is not worth pursuing, says Simpson.

“There’s real mischief here, there’s real harm in copying people’s work,” he says. “The fact that there may not be a lot of commercial value doesn’t mean there shouldn’t be an inadequate remedy. Statutory damages exist because of that.”

Simpson says those whose “attitude is there’s no value in the photographs themselves because no one is selling the photographs, that they are just links to what we are selling” should take notice.

“This case is a cautionary tale, particularly for content aggregating websites that sell products using third party photographs,” he says. “There’s a perception out there that this kind of photography is somehow without much value and it’s free for the taking. This judgment confirms that is not the case.”