A number of years ago I was asked to rescue an advertising agency. The advertising agency required a picture of a dancer for the advertising campaign for a large company. The advertising agency had obtained clearance from the photographer, but had not paid any attention to the identity of the dancer in the picture. For their purposes, it did not matter as long as a dancer was depicted. It turned out that the dancer was famous and regularly charged a fee for endorsing any product or service. All licensing of the dancer’s image was done through a licensing agency, which instructed a legal firm to contact the large company. My client, the advertising agency, took the “high road” and undertook to bear the cost of rectifying their mistake. I negotiated a licensing fee, which the advertising agency promptly paid. However, they had learned a rather expensive lesson. As I am a lawyer and the matter was settled out of court, in light of the duty of confidentiality that I owe my clients, I am unable to divulge the identity of my client, the identity of the large company, the name of the famous dancer or the settlement amount.
To be clear, it is not necessary for a person to be famous for him or her to have the right to demand a royalty or license fee for use of their image in advertising. For example, under the British Columbia Privacy Act, it is a tort (meaning it is illegal) for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose. Though, to be clear, a person is not liable to another for the use, for such purposes, of his or her portrait in a picture of a group or gathering, unless the person complaining of the use of the picture is (a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or (b) recognizable, and the person who used the picture, by using the picture, intended to exploit the plaintiff’s name or reputation. Many other jurisdictions have similar laws.
The recent case of Saad v. Le Journal de Montreal, illustrates the more common issue with use of photographs or images, being infringement of copyright (rather than unauthorized use of a person’s image). Le Journal de Montreal was doing an article on a person and asked that she provide a photograph to be used along with the article. Le Journal de Montreal did not pay attention to the identity of the photographer or ascertain ownership of copyright in the photograph. The photographer sought compensation for the unauthorized use of the photograph. Le Journal de Montreal first argued that they had no knowledge that their use of the photograph would constitute infringement. The Court did not accept that argument as newspapers regularly have to deal with photographs and the photographers name was on the photograph. Le Journal de Montreal then argued that they fit into an exception provided in the Copyright Act that allows use of a photograph as “fair dealing” for the purpose of news reporting. The Court noted that in order to invoke the “fair dealing” exception Le Journal de Montreal would have had to acknowledge the source of the photograph by giving the photographers name. Furthermore, the photo had nothing directly to do with the subject matter of the news article and, therefore, was not “for the purpose of news reporting”. In the result the photographer was awarded $2000 plus costs.
Legal firms with experience in intellectual property, such as Thompson Cooper, are asked to address these type of issues relating to photographs relatively often. Parties wishing to use a photographs of persons should be aware that proper authorization may require not only the consent of the copyright owner, but also, in some circumstances, the consent of the person who is the subject of the photograph.