Leuthold v. Canadian Broadcasting Corp. et al., (2012) 413 F.T.R. 162 (FC)

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: June 14, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 413 F.T.R. 162 (FC);2012 FC 748

Leuthold v. CBC (2012), 413 F.T.R. 162 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. JL.010

Catherine Leuthold (plaintiff) v. Canadian Broadcasting Corporation and Jerry McIntosh (defendants)

(T-299-05; 2012 FC 748; 2012 CF 748)

Indexed As: Leuthold v. Canadian Broadcasting Corp. et al.

Federal Court

Scott, J.

June 14, 2012.

Summary:

The plaintiff, a photo journalist, sued the Canadian Broadcasting Corp. (CBC) and a director of CBC news for damages for copyright infringement, for using her photographs in a documentary without permission.

The Federal Court allowed the action. The court awarded damages accordingly and ordered the defendants to deliver up all offending material.

Copyright - Topic 3045

Licences - Effect of - Licence to broadcast - [See both Copyright - Topic 3062 ].

Copyright - Topic 3062

Licences - Licence statements - Interpretation - On March 19, 2002, the plaintiff retroactively licensed the Canadian Broadcasting Corp. (CBC) to use her photographs in a the documentary "As the Towers Fell" - No compensation was due unless the photographs were used for advertising - The documentary was originally broadcast on March 17, 2002, on CBC's main channel in all five time zones, at their respective local time, directly or through the CBC's affiliated stations and on CBC's speciality service Newsworld - The plaintiff sued for copyright infringement, claiming that the March 19 licence was restricted to one broadcast in one time zone, on CBC's main channel, which excluded regional stations, affiliates and Newsworld - The Federal Court held that CBC's March 17 broadcast was authorized by the plaintiff as there were no restrictions imposed in the March 19 licence - Since the photographs were not used to advertise the documentary, there was no payment due for that broadcast - See paragraphs 46 to 54.

Copyright - Topic 3062

Licences - Licence statements - Interpretation - On October 7, 2002, the plaintiff retroactively licensed the Canadian Broadcasting Corp. (CBC) to incorporate five photographs into a documentary, "As the Towers Fell", and to broadcast those "on Canadian television for one broadcast on CBC's Network & Regional TV stations" - The production originally aired on September 10, 2002, on CBC's main channel and on CBC's speciality service Newsworld in all time zones - The plaintiff sued for copyright infringement, claiming that the licence covered "one broadcast" only (i.e., one time zone and not on Newsworld) - The Federal Court interpreted the licence - The court held that the licence included Newsworld and the right to broadcast in all time zones to affiliates and regional television stations - Consequently, the September 10, 2002, broadcasts did not infringe on the plaintiff's copyright - See paragraphs 55 to 91.

Copyright - Topic 4406

Infringement of copyright - General principles - Persons liable - A Canadian Broadcasting Corporation (CBC) documentary, "As the Towers Fell", incorporated photographs taken by the plaintiff - The CBC admitted to broadcasting the production on its specialty service Newsworld to the public on six occasions without authorization (the photographs were viewed for 18 seconds) - At issue was whether the Director of Documentaries for CBC news, who authorized the broadcast (allegedly by mistake), was independently liable for copyright infringement - The Federal Court held that in authorizing the broadcast the Director infringed the plaintiff's copyright, but he was not liable for the infringement on the basis of vicarious liability (i.e., CBC was responsible for the misconduct of its employees) - The Director was not personally liable because it was clear from the evidence on the record that the unauthorized communications to the Canadian public were not the result of a deliberate act or of gross negligence - See paragraphs 164 to 171.

Copyright - Topic 4497

Infringement of copyright - Acts constituting an infringement - Photographs - A Canadian Broadcasting Corporation (CBC) documentary, "As the Towers Fell", incorporated photographs taken by the plaintiff - The CBC admitted to broadcasting the production on its specialty service Newsworld without authorization from the plaintiff on six occasions - The production was also transmitted by CBC to all the Canadian broadcasting distribution undertakings (BDUs) that had the right to carry the Newsworld service - The plaintiff sued for copyright infringement, claiming that in addition to the six broadcasts acknowledged by the CBC, each transmission by the BDUs constituted a separate communication to the public that had to be compensated - The Federal Court held that the CBC was liable jointly and severally with the BDUs, but only for the six communications to the public that infringed on the plaintiff's copyright - See paragraphs 92 to 101.

Copyright - Topic 4553

Infringement of copyright - Acts not constituting an infringement - [See first and second Copyright - Topic 3062 ].

Copyright - Topic 4586

Infringement of copyright - Remedies - Damages - A Canadian Broadcasting Corporation (CBC) documentary, "As the Towers Fell", incorporated photographs taken by the plaintiff - The CBC admitted to broadcasting the production on its specialty service Newsworld to the public on six occasions without authorization (the photographs were viewed for 18 seconds) - The Federal Court reviewed the principles applicable in assessing damages for copyright infringement and awarded the plaintiff $3,200 US for each of the six unauthorized communications - An accounting of profits was not appropriate as there was no causal link between the fee paid by Newsworld subscribers and the unauthorized communications; however, $168.73 was awarded for revenue received by Newsworld - Exemplary damages were not awarded where the unauthorized communications resulted from an honest mistake - The court ordered delivery-up of the infringing material - See paragraphs 102 to 163.

Copyright - Topic 4586

Infringement of copyright - Remedies - Damages - [See Copyright - Topic 4497 ].

Damages - Topic 1296.1

Exemplary or punitive damages - Exemplary or punitive damages defined - The Federal Court stated that "... while they are often confused, there is a distinction between punitive and exemplary damages ... Exemplary damages go beyond full compensation of the plaintiff and include a sum to penalize the defendant. Punitive damages can be defined, on the other hand, as the granting of a more generous amount for an award of actual damages rather than a more moderate amount because of the reprehensible conduct of the defendant ... " - See paragraph 153.

Master and Servant - Topic 3501

Liability of master for acts of servant - General - [See Copyright - Topic 4406 ].

Words and Phrases

One broadcast - The Federal Court interpreted the meaning of this phrase as it appeared in a licence by a photo journalist to allow the Canadian Broadcasting Corp. to incorporate five of her photographs into a documentary for "one broadcast" - See paragraphs 58 to 91.

Cases Noticed:

SimEx Inc. v. IMAX Corp. et al. (2005), 206 O.A.C. 3 (C.A.), refd to. [para. 69].

Hutton and Denali Music Ltd. v. Canadian Broadcasting Corp. (1989), 102 A.R. 6; 29 C.P.R.(3d) 398 (Q.B.) affd. (1992), 120 A.R. 291; 8 W.A.C. 291; 41 C.P.R.(3d) 45 (C.A.), refd to. [para. 111].

Webb & Knapp v. Edmonton (City) (1970), 44 Fox, refd to. [para. 120].

Video Box Enterprises Inc. et al. v. Peng (2004), 250 F.T.R. 101; 2004 FC 482, refd to. [para. 121].

Prism Hospital Software Inc. et al. v. Hospital Medical Records Institute et al., [1994] B.C.T.C. Uned. C26 (S.C.), refd to. [para. 131].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267; 2002 SCC 34, refd to. [para. 132].

Bishop v. Télé-Métropole Inc., [1990] 2 S.C.R. 467; 111 N.R. 376, refd to. [para. 132].

Blue Crest Music Inc. et al. v. Compo Co., [1980] 1 S.C.R. 357; 29 N.R. 296, refd to. [para. 132].

U&R Tax Services Ltd. v. H&R Block Canada Inc. (1995), 97 F.T.R. 259; 62 C.P.R.(3d) 257 (T.D.), refd to. [para. 134].

Slumber-Magic Adjustable Bed Co. v. Sleep-King Adjustable Bed Co. (1984), 3 C.P.R.(3d) 81 (B.C.S.C.), refd to. [para. 135].

Équipe de recherche opérationnelle en santé inc. v. Conseillers en gestion et informatique C.G.I. inc. et al. (2004), 258 F.T.R. 172; 2004 FC 178, refd to. [para. 136].

École de conduite Tecnic Aubé inc v. 15098858 Quebec Inc (1986), 12 C.I.P.R. 284 (Que. S.C.), refd to. [para. 137].

Parker et al. v. Key Porter Books Ltd. et al., [2005] O.T.C. Uned. 486; 40 C.P.R.(4th) 80 (Sup. Ct.), refd to. [para. 137].

Jelin Investments Ltd. v. Singtech Inc. (1990), 39 F.T.R. 94; 34 C.P.R.(3d) 171 (T.D.), refd to. [para. 153].

Pro Arts Inc. v. Campus Crafts Holdings Ltd. (1980), 110 D.L.R.(3d) 366 (Ont. H.C.), refd to. [para. 158].

Montigny c. Cousineau, [1950] S.C.R. 297, refd to. [para. 161].

Durand and Cie v. Patrie Publishing Co., [1960] S.C.R. 649, refd to. [para. 161].

Canadian Performing Right Society Ltd. v. Canadian National Exhibition Association, [1934] O.R. 610 (H.C.), refd to. [para. 161].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al. (2001), 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 170].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 2.4(1)(c) [para. 32]; sect. 13(4) [para. 57]; sect. 27(2) [para. 35]; sect. 34(1) [para. 117]; sect. 35(2) [para. 145]; sect. 38.1(3) [para. 130].

Authors and Works Noticed:

Dimock, Ronald E., Intellectual Property Disputes: Resolutions & Remedies, vol. 2 [para. 131].

Gendreau, Ysolde, and Vaver, David, International Copyright Law and Practice (1998), vol. 1, CAN-113 [para. 138].

Grenier, François, M., Monetary Relief - Damages (2003), p. 17-16 [para. 131].

Tamaro, Normand, The 2012 Annotated Copyright Act (2012), pp. 412 [para. 68]; 726 [para. 120]; 727 [para. 133]; 732 [para. 136]; 756 [para. 146].

Counsel:

Daniel O'Connor, for the plaintiff;

Christian Leblanc, for the respondents.

Solicitors of Record:

Daniel O'Connor, Pointe-Claire, Quebec, for the plaintiff;

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the respondents.

This matter was heard at Montreal, Quebec, on February 6 to 9, 13 and 14, 2012, before Scott, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on June 14, 2012.