By Richard Stobbe

A professional photographer sued the gallery that sold his works, and won a damage award for copyright infringement, infringement of moral rights, and punitive damages. In this case (Collett v. Northland Art Company Canada Inc., 2018 FC 269 (CanLII)), Mr. Collett, the photographer, alleged that his former gallery, Northland, infringed his rights after their business relationship broke down.

We don’t see many “moral rights” infringement cases in Canada, so this case is of interest for artists and other copyright holders for this reason alone. What are “moral rights”?

In Canada the Copyright Act tells us that the author of a work has certain rights to the integrity of the work, the right to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

These so-called moral rights of the author to the integrity of a work can be infringed where the work is “distorted, mutilated or otherwise modified” ina  way that compromises or prejudices the author’s honour or reputation, or where the work is used in association with a product, service, cause or institution that harms the authors reputation. Determining infringement has a highly subjective aspect, which must be established by the author. But this type of claim also has an objective element requiring a court to evaluate the prejudice or harm to the author’s “honour or reputation” which can be supported by public or expert opinion.

Here, the court found that the gallery had infringed Mr. Collett’s moral rights when the gallery intentionally reproduced one print entitled “Spirit of Our Land” and attributed the work to another artist. By reproducing “Spirit of Our Land” without Mr. Collett’s permission, the gallery infringed the artist’s copyright in the work. By attributing the reproductions to another artist, the gallery infringed the artist’s moral right “to be associated with the work as its author”.  This is actually a useful illustration of the difference between these different types of artist’s rights.

The unauthorized reproductions sold by the gallery were apparently taken from a copy resulting in images of lower resolution and therefore inferior quality, compared to authorized prints; unfortunately, we don’t have any insight into whether inferior quality would also infringed the artist’s moral right to the integrity of the work. The court declined to comment on this aspect since it had already concluded that moral rights were infringed when the prints were sold under the name of another artist.

Lastly, and interestingly, the court found that a link from the gallery’s site to the artist’s website constituted an infringement of copyright. It’s difficult to see how a link, without more, could constitute a reproduction of a work, unless the linked site was somehow framed or otherwise replicated within the gallery’s site. The evidence is not clear from reading the decision but the artist’s allegation was that the gallery “reproduced the entirety” of certain pages from the artist’s site, which created the false impression that the gallery still represented the artist. The court noted that the gallery continued to maintain a link to Mr. Collett’s website “knowing it was not authorized to do so.” By doing so, the gallery infringed the artist’s copyright in his site, including a reproduction of certain prints. Maintaining such a link was not found to constitute a breach of the artist’s moral rights.

In the end, statutory damages of $45,000 were awarded for breach of copyright, $10,000 for infringement of moral rights, and $25,000 for punitive damages to punish the gallery for its planned, deliberate and ongoing acts of infringement.

Calgary – 07:00 MST