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No copyright protection attached to photos of photos

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A recent case involving an enhanced digital copy of an old photograph brings up interesting issues around copyright and retouched images, Toronto intellectual property lawyer John Simpson tells

Simpson, who acted for the successful defendant in the matter, says one of the core issues was to what extent can a person own copyright when it comes to enhanced copies of photographs.

“What level of skill and judgment is applied when enhancing photographs? In this case, the evidence was that there wasn't much. The images were run through a computer program that did its own automatic corrections.’

The matter involved a plaintiff documentary filmmaker and his wife, who created an “internet museum” about the Boer War based on his initial and ongoing research. The site contains hundreds of coloured pictures and stories of those involved in the war.

The defendant, also an avid historian and filmmaker, wrote a blog post about a Toronto-born Boer War combat photographer. His blog contained several photos and some information found on the plaintiff’s site, all of which he credited.

When the plaintiff was made aware of the blog post, he accused the defendant of copyright infringement and plagiarism and claimed damages for loss of revenue as well as punitive and special damages in the amount of $20,000.

Simpson, principal of Shift Law, a boutique firm specializing in IP and new media law, says his client’s defence was two-fold. First, he argued the plaintiffs had no copyright on the photos or facts contained on their site. Alternatively, even if copyright protection existed, the defendant’s use of these items constituted "fair dealing" under the Copyright Act.

Under the Act, copyright protection does not extend to facts or ideas but is limited to the expression of ideas.

“Clearly, the claim of the plaintiff in regards to copyright in the facts of the story must fail,” the judge stated.

Simpson says the law has been fairly consistent in that people can’t protect historical facts through copyright on the original creations.

“Understandably, this can be frustrating for those who put time and effort into ‘discovering’ interesting facts and stories,” he says. “But you can’t own exclusive rights to a historical story through copyright.”

With respect to the images on plaintiff's site, the court found the enhancement of the photographs was a “purely mechanical process.”

Essentially, the plaintiff sourced the pictures, took photos of them and then put them into a computer program to enhance them, Simpson says. For the plaintiff's work to be considered "original" within the meaning of the Act, it must be more than a mere copy of another work, he adds.

“Even if there were colour enhancements and cropping involved, it’s doubtful that would be considered an ‘original work’ under the Act,” Simpson says.

Alternatively, if it was found there was a copyright in these enhanced photographs, Simpson argued fair dealing — which includes use for research and educational purposes — would apply and would not infringe copyright.

“The court didn't go into much detail about this point, but it did determine that if there was infringement, fair dealing would apply on the basis of a combination of research and education purposes,” he says

Simpson says if historians, curators or documentarians want to protect pictures they have sourced, they would have more success by going the contract route rather than copyright.

“If there were terms of use on a website indicating visitors cannot use any of the images or content without permission then that would be a breach of contract case," he adds.

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