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Playboy copyright lawsuits a classic test for the scope of fair dealing

Originally published in AdvocateDaily.com

Lawsuits by Playboy Enterprises against two Canadian publications for reproducing titillating photographs of supermodel Kate Moss could be a classic test for the scope of fair dealing under the Copyright Act, says Toronto intellectual property lawyer John Simpson.

As Canadian Press reports, Playboy filed copyright suits against Toronto-based Contempo Media and Montreal's Indecent Xposure, seeking up to $50,000 in damages from each outlet. Playboy alleges the Canadian publications illegally reproduced photographs of bunny-eared Moss taken for the U.S. magazine's 60th anniversary issue.

“Indecent Xposure publishes the online IX Daily, which features articles on fashion, music and culture in Canada. One such article was on the Kate Moss spread two years ago in Playboy, which sparked reports from publications around the world,” Canadian Press reports.

Nick Younes, founder of Indecent Xposure, told the wire service that at the time pictures were published, the webzine was making no money and it took down the offending material as soon as Playboy objected in mid-2014.

Younes, who has yet to file a statement of defence, told Canadian Press the news article, which credited the images, was squarely in line with Canadian copyright laws that allow fair use.

"It sounds a bit crazy that they would really go this far, especially a big company like Playboy,'' he says in the article. "There was no monetary value as to us putting up that article and making money off the backs of Playboy. That is just pure ridiculousness. The post itself, I'm not even kidding you, had 109 views. It's not like we stole money from them.''

Canadian Press reports the other claim relates to Contempo's publication Sharp – Canada's Magazine for Men, which published its Moss pictorial with numerous images under the heading of "The Kate Moss Anthology.''

Contempo president John McGouran told the wire service he had not yet seen the claim but did acknowledge having been contacted at one point by an American firm.

According to the separate but similar statements of claim, Playboy claims it did not give permission to anyone to reproduce or publish the pictures. The company says Contempo and Indecent Xposure reproduced or published the pictures going back to December 2013, the unproven claims before Federal Court allege.

Simpson, principal of Shift Law, says it’s almost certain that if a defence is filed it will be that the defendants' use of these images constitutes fair dealing under the Copyright Act.

“Fair dealing is sometimes referred to as a ‘user's right’ rather than simply a defence,” he tells AdvocateDaily.com. “In other words, it's not really a defence to copyright infringement. It’s a relatively broad category of users’ rights that covers things like private research, news reporting, satire, etc.

“If what you're doing falls under those headings, the court then has to determine whether that use is still fair. The courts would look at a number of factors such as is your use depriving the copyright owner's ability to commercialize the image? Were there alternatives available?

“This Playboy case is a classic law school example of the issue of fair dealing and its scope,” he adds.

Simpson explains that the two Canadian media outlets appear to have been covering the Playboy anniversary issue as a news item and included images to support the story.

“I think the issue would come down to whether or not this is news reporting. And I think that's pretty clear. These look like typical online ‘lad mags’ that discuss things like supermodels and snowboarding and shaving equipment,” he says.

“From what I gather looking at the exhibits, there were a number of reproductions. The images were accompanying a story — the story being: ‘Isn't this interesting, Kate Moss still has it and doesn't she look awesome and here's an image and here's another one and here's another one,” he says. “I would think this would be viewed as publicity for the anniversary edition.”

However, Simpson says that by publishing all of the images, Playboy could claim that the defendants are making readers less likely to purchase the anniversary issue.

“Was publishing 16 pictures necessary? Probably not. That's where fairness will come into play,” he says. “I don't think this will go all the way to trial, as these cases rarely do. But it would be fun if it did because it be would be interesting to see the analysis.”

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