Category Archives: News

Streaming vs. Downloading: Supreme Court Eliminates some Fees on Downloads

Forgive me for the long delay since my last blog post – it’s been a crazy summer! Business is busy, the Open Roof Festival is going well, and between the various trips, concerts and other adventures the summer holds, blogging has taken a back seat. Until now…

Today, the Supreme Court of Canada handed down five rulings related to music and copyright. Among those were a decision that 30-second song previews on iTunes (and other online music stores) are not copyright infringements and therefore, warranted no royalties.

The Court also decided on whether Internet service providers (ISPs) are responsible for royalty payments to artists when consumers stream or download music. The Court ruled that there is a real difference between downloaded and streamed music. This indicates a real change in thinking to reflect the real change in how we, as consumers, experience and consume music.

The court held that, while streaming music will continue to be considered as a “performance” (and thus, performance fees will continue to be paid on streamed music), downloaded music (i.e. a la iTunes) will not be subject to such fees. The fees include those administered by SOCAN, Re:Sound and other organizations which collect tariffs or artists fees so that, among other reasons, artists can recapture revenues lost on music not sold or distributed traditionally.

This further clarifies that downloads are not performances or “public” as the Copyright Act once held through unclear language prior to the passing of the Copyright Modernization Act, but rather, that downloads are private, single instance transaction. On the other hand, streaming is akin to “communication to the public” and, as such, qualifies as a performance.

You can read the entirety of the text of the decision relating to streaming vs. download royalties here. 

Jordan will be speaking at the World Short Film Festival

I am pleased to announce that I will be speaking at the Canada Film Centre’s World Short Film Festival Symposium on behalf of the Open Roof Festival on June 7, 2012.

The session is entitled “Screens without Borders”, and I’ll be joined by:

Jeremy Butteriss, Director of Strategic Partnership, Google Canada
Kate Hewlett, Writer, SHE SAID LENNY, and Co-Creator and Co-Writer, ASSASSIDATE
Sharon Switzer, Director, Toronto Urban Film Festival, and Arts Programmer and Curator, Pattison Onestop

Here’s the blurb from the WSFF site:

Theatres and televisions are no longer the only screens in town! With a variety of personal devices, public displays and accessible technologies, intrepid filmmakers can showcase their shorts just about anywhere! Learn how to the make the most of mobile technology and the urban landscape from industry experts on the cutting edge of alternative screens. An exploration of novel forums for the moving image, this presentation reveals a variety of unknown opportunities waiting for filmmakers and their films.

The session will be taking place at 3:30 pm and you can find out more details here. It should be a great and interesting session, and I hope to see you there!

 

New NahmiasLaw Branding

Untitled

After many months of anxious waiting and working with my amazing clients and friends at The Production Kitchen and The INN Creative, they are finally here!

These new business cards (along with a whole bunch of branding which will get rolled out over the next few weeks) are awesome. Thick stock, great off white colour, and even embossed. I feel like Patrick Bateman right now.

If that reference makes no sense, check this out: http://youtu.be/qoIvd3zzu4Y

Anyway, back to the card. Simple, elegant and sums up a good chunk of what I do: video gaming and digital entertainment work, copyright and IP work, and corporate work (hence, the briefcase, although I don’t know how many people carry briefcases anymore – but you get it).

#SXSW (or, How I Learned to Stop Worrying and Love Twitter)

I just got back from a fantastic trip to Austin, Texas (the home of the South by Southwest Conference on interactive media, film and music and also the home of weird). Although I went down with some colleagues to focus on selecting content for the Open Roof Festival‘s upcoming 2012 season, I also learned quite a bit and came away with a few things on my mind – both in terms of entertainment as well as the future of digital media, social networking and how content is going to be developed, distributed and shared going forward. In particular, I walked away from the Festival with three things on my mind, and although none of them are new concepts or are mindblowing ideas, a renewed focus on them gave me some insights I thought are worth sharing. In no particular order they are:

Convergence

It’s a word we love using in the entertainment/digital media world. “Convergence”. I must have used it about ten times per day when meeting various people in film, gaming, digital media, distribution and a host of other industries while at SXSW. But what does it even mean? My take on it is this: media is moving toward one focal point of distribution – through sharing and the merging of platforms – and there is almost nothing we can do about it. Not that it’s a bad thing. But, it’s important to note that the traditional models of watching a movie, listening to music, playing a video game, and so on, are all likely going to eventually come at us in one form and through one platform – digitally and through the internet, respectively. For example, I was speaking with someone at SXSW who is the business of acquiring content for a large film distribution company, and her role is to simply ensure that the VOD (Video on Demand) library is full. How do we get VOD? Ultimately, through the internet and in the form of digital media. This was not the case long ago. Other examples include the sourcing of music, not by CD or vinyl (gasp!), but rather, by a stream from the “cloud” where our digital music files are stored. Does this mean that convergence means Apple Inc. will essentially manage and sell to us every piece of media? Maybe. But the important thing to note is that, as we move forward, and as technology evolves, law will have to evolve to acknowledge the fact that the traditional lines separating modes of distribution and forms of content are blurring, if not vanishing altogether.

Location-Based Apps are the Future

SXSW is the home of the launch of many apps (most notably, Twitter) and the interactive element of the conference dwarfs the film and music side of things. Over the course of 4 short days, I was bombarded with trial downloads, advertisements, on-site activations, etc., for a wide range of apps, almost all of which focused on letting people know where I was, what I was doing and why they should be doing the same things. Many of these were only available in the US, however, some of them are coming to Canada shortly. The rise of location-based apps has a lot to do with the advent of GPS enabled mobile phones as well as the ease with which the SDK (software development kits) for the iOS and Android systems are obtained and used. Combine that with the fact that there is a tendency in our generation to let everyone know what we are doing, eating, saying, thinking and looking at all the time, and voila – you have the inspiration for developing an almost infinite supply of apps (many of which are redundant and/or useless) that will tell people what you are doing and where you are at any given moment. Some focus on people within your immediate range, others only on people you know. I will admit that this was particularly useful at SXSW – however, be prepared to see this sort of technology being implemented in other apps which, to date, have not necessarily sent out an automatic signal to others letting you know where you are. “Automatic” you say? That leads me to the final point of this post….

Instantaneous Communication

There was no point at which, over the course of 4 days, I did not know exactly what was happening at any second of the day. Largely due to Twitter and the fact that WiFi was everywhere (including on the bodies of homeless people) I was able, at any minute, to search or be updated on the following: what movies were playing; how long the lines were; what the weather was; who was or was not speaking; the best or worst events of the hour; what parties to go to; what parties sucked; which of my friends were around me; what to eat; who to follow on Twitter; who to ban on Twitter; etc., etc., etc. (you get the point). Some of you might be thinking, “Jordan, you are clearly living in the stone age – how have you not realized the power of this type of communication until now?” To them I respond – “I don’t know.” But I’d also say this: the speed at which we are now communicating as a result of the advent of mobile technology and the ease with which we can obtain important information presents a spectre of awe and fear. The usefulness of these types of communications is staggering – but also puts an incredible amount of pressure on people to do things quickly, to release information automatically, and to have no patience for process. Combined with the growth of applications showing where you are at all times and you have this potential outcome (also not news): you may never have any privacy again.

Conclusion

These are big issues, ones which I promise not to overindulge in or bore you with. But, being at SXSW, seeing what was happening and hearing what people had to say really brought these concepts to the fore and ones which I thought were worth sharing. The lesson? Go to SXSW – I promise, you’ll learn something.

The New Age of Gossip: Social Media, Defamation and Hyperlinking

Last week, I posted on the use of “deep links” and the legal issues surrounding such use. This week, the issue of linking comes up again, as in the same week, the Supreme Court of Canada ruled that online writers can use hyperlinks to defamatory content, without themselves becoming liable for defamation.

In Crookes v. Newton, (2011 SCC 47), former Green Party executive, Wayne Crookes, brought an action against Jon Newton, alleging that his use of hyperlinks to online discussion Crookes considered defamatory, was in itself defamatory.

There is no question that Crookes has made a good point – in fact, a huge majority (if not all) of gossip and defamatory content is conjured up and shared through the use of blogs, Twitter and other online forums. And, the fact that such information is shared at an immeasurable speed due to the rapid spread of connected devices, only increases the chances that you heard about the latest extramarital celebrity affair or political scandal, by way of a hyperlink.

In fact, Abella J. (speaking for the majority of the SCC) noted that, considering the sharing of a hyperlink to defamatory content as defamation in and of itself might cause a chill effect, and “would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.”

Defamation in Canada can be defined as “communication about a person that tends to hurt the person’s reputation. The communication must be made to other people, not just to the person it’s about. It can be spoken, which is called slander, Or it can be written, which is called libel. It can also be a gesture, which is a type of slander.” 1

So, is a hyperlink a “communication”? Although Deschamps J. noted that a hyperlink may, in some cases, pass the test of qualifying as a “publication”, Abella J. for the majority stated that “A hyperlink, by itself, should never be seen as ‘publication’ of the content to which it refers….Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.”

Although this judgment arguably takes into account the reality of the Internet (and the viral spread of information through it), I would argue that those who “re-tweet” or directly quote defamatory content into their own Twitter, Facebook or blog feeds, stand a much greater chance of being held accountable for defamation, for (as Deschamps J. put it) those users don’t act as “mere conduits” of the information in question. Rather, they deliberately publish the defamatory information. And, on a balance of probabilities, a Twitter subscriber would receive the information in a way which was understood. Therefore, both arms of the publication test are satisfied, and thus, the Tweeter may be held liable for defamation.

Of course, we have yet to see the consequences of this decision. There is no doubt that other forms of sharing will fall under the scrutiny of the courts in the future. The interesting thing will be to see how this decision holds up.

 

*As always, this article does not constitute legal advice. In the event you do require legal advice on this, or a similar matter, feel free to contact us.

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Shoot First, ask Questions Later? Personality Rights and Being Captured on Film

So you’re a photographer or videographer.

You’re walking down the street, hanging out in the park, observing the latest riot, or what have you.

And your eye catches an image so captivating, a person so interesting, that you think, “I have to get this shot. And I am going to use this shot to build my career.”

Recently, the Globe & Mail did a “9/11 in Focus” series on photographers (like the one in the above parable) who had caught completely captivating images on 9/11. Many of these photographers were professionals, some weren’t. The images in question were of people, who were not famous or well known, and generally hadn’t consented to their image being used commercially or otherwise. The photographers, all freelancers, decided that the images were powerful enough and many of them sold them to newspapers or licensed them to various media outlets. Although some of the people in the photos weren’t too happy, they didn’t make any claims, and the photographers walked away with images that, in many cases, jumpstarted their careers.

Simple right? Not so fast.

In Canada, there exists a common law tort of “appropriation of personality”, meaning, you can’t just go around taking pictures of people as a freelancer and use that image to generate some money.

Initially introduced in Krouse v. Chrysler Canada Ltd. (1973) 1 O.R. (2d) 225 (Ont. C.A.), the tort allows an individual to control the commercial use of his or her name, image, likeness, voice, reputation or other aspects of his or her identity. Over time, the question of whether one has appropriated the personality of another has evolved into a four part test: 1) the exploitation of the plaintiff’s identity was for a commercial purpose; 2) the exploitation clearly and primarily captured the plaintiff’s identity; 3) the plaintiff does not consent to the use of his or her personality; and, 4) the plaintiff suffers proven damages through tarnishing of reputation or interference with the plaintiff’s exclusive right to market his or her image.

Consent

In all cases, the plaintiff has not consented to the specific use and purpose of use of his or her likeness. Therefore, it is given as a part of the test for appropriation of personality that, to succeed, the plaintiff can not have given consent to the use of his or her identity.

Exploitation Must be for a Commercial Purpose

The test of whether an exploitation is for a commercial purpose was laid out in Gould Estate v. Stoddart Publishing Co., (1996) 30 O.R. (3d) 520 (Ont. Gen. Div.), in which the plaintiff, a famous pianist, was interviewed by Jock Carroll for a magazine. 40 years later, Carroll published a book through Stoddart using images and words attributed to Gould from that initial interview. As Gould had passed away, his estate sued Stoddart.

The trial judge outlined the “sales vs. subject” distinction, which asks whether the likeness was used in connection with the sale of consumer merchandise or solely for the purpose of trade, as opposed to if the likeness was used simply as the subject of the defendant’s work. In the latter, the defendant’s work would not infringe on the rights of the plaintiff; in the former, it would.

On that basis, the court held that the rights of Gould had not been infringed, as there was a public interest in knowing more about Canada’s musical talent, Gould serving as the subject of such a study. Since the primary purpose was not for commercial gain, the tort was not established.

In Aubry v. Editions Vice-Versa Inc. [1998] 1 S.C.R. 591, the court took a “private interest vs. public interest” approach. The plaintiff, a 14 year old, non-celebrity girl was photographed and her image was published without authorization. Contrasting the “sales vs. subject” approach in Gould, the court held that the privacy rights of the plaintiff were more important than the public’s right to information or freedom of expression: “the public’s interest in being informed is a concept that can be applied to determine whether impugned conduct oversteps the bounds of what is permitted.” In this case, it was clear the court believed that the private rights of the plaintiff were subordinate to the rights of the public to certain images or information.

Exploitation Must Clearly and Primarily Capture the Plaintiff

In Krouse, a famous football player sued Chrysler Canada for a promotional item distributed by Chrysler that depicted the plaintiff in his Hamilton Ti-Cat uniform. He claimed that the use of his image was an unfair exploitation of his personality to the advantage of Chrysler. The court disagreed and held that Chrysler was not liable, as the image of the plaintiff was incidental, and not the primary object of the photograph. Rather, the defendant had used the image to connote it’s product with football, and not to suggest that Mr. Krouse personally endorsed Chrysler.

Similarly, in Joseph v. Daniels, 1986 A.C.W.S.J. LEXIS 32655, the plaintiff, a bodybuilder, sued the defendant, a photographer, for appropriation of personality arising from the unauthorized use and sale of a photo depicting the plaintiff from the waist up, holding a kitten. Considering whether the photo clearly and primarily captured the plaintiff, the court held that since the photo only depicted the plaintiff from the waist up, a viewer would not be able to identify the plaintiff. Therefore, the exploitation did not clearly capture the plaintiff, and the tort was not established.

Damages Must be Proven through Tarnishing of Reputation or Denial of Exclusive Right to Market Personality

Contrast the Joseph decision with Athans v. Canadian Adventure Camps Ltd. et. al., (1977), 17 O.R. (2d) 425 (Ont. H.C.J.). In Athans, the plaintiff, a famous water skier, was depicted by the defendant in a promotional brochure. The photo used was one that was frequently used by Athans himself for promotional purposes. The court held that the parents of children who would send their kids to the defendant camp would not have recognized the image of Athans, and therefore, the image did not clearly capture the plaintiff. Nevertheless, the court awarded damages to Athans, as the camp had appropriated the plaintiff’s personality for the deliberate purpose of associating the plaintiff with the defendant camp, infringing on his exclusive right to market himself. This violation of his exclusive right constituted “an aspect of the tort of appropriation of personality”.

Athans therefore serves as a narrow exception to the general rules, wherein, even if the exploitation does not clearly depict the plaintiff, where the plaintiff has already marketed and charged for the use of the image and the use of the defendant would cause a commercial loss to the plaintiff, the plaintiff ought to be compensated for such loss and denial of exclusivity.

Conclusion

It’s clear from the case law discussed that, although there is a test by which we can ascertain whether one’s public image rights have been violated, this area of law continues to evolve (particular in regards to the use of names and likenesses on the ever-expanding Internet) it is clear that, when creating images embodying the likeness of another person, one ought to be careful, considerate, respectful of privacy, and most importantly, acting with the consent of the person who’s image is captured.