Allen v Toronto Star Newspapers Ltd, [1997] OJ 4363 (CanLII)

Key Principle:

The fair dealing defence is contextual, meaning it is highly dependant on the facts of an individual case. Generally, one will not be found to have infringed a copyright of an author if the reproduction of that author’s work is only a minimal part of the work in question. In some cases, it may be lawful to reproduce some or all of another’s works in order to inform. For example, it may be lawful to reproduce the entirety of a small poem if it is part of a much larger essay intended to convey an idea or prove a point.


The Situation:

You are a freelance photographer who has been contracted by Gotham Watch Weekly, a magazine that keeps comic enthusiasts up to date on the world of comic book superheroes. You have been asked to do a photo shoot of Benedict Cumberbatch, the latest actor to join the Marvel universe of superheroes. Your contract with Gotham Watch does not specifically discuss who owns copyright in the photos you take, but general industry practice is the photographer retains copyright. You take a number of photos based on Gotham Watch’s wishes and deliver them to their Editor in Chief. The Editor in Chief chooses which photo she wants to use for the magazine cover and she also chooses what typeface and colour she wants on the title page.

The Globe & Mail wants to do a piece on the popularity of superhero motion pictures and the rise of high-profile actors taking on superhero roles. They contact the Editor in Chief of Gotham Watch to ask if they can use a reproduction of their magazine cover (that used your photo) for their article. The Editor in Chief gives them the ‘OK’.

You bring an action against the Globe & Mail and Gotham Watch for copyright infringement, claiming the Globe & Mail infringed your copyright in the photo and that Gotham Watch did not have the right to authorize the reproduction of your photo.

The Conclusion:

Unfortunately, it is unlikely you will win. The fact that the Editor in Chief chose which photo to use for the cover, and put much thought into what typeface and colouring to use, renders the cover of Gotham Watch a separate work from your photo; it is considered an original work due to the effort in creating it. So, Gotham Watch did have the authority to allow the Globe & Mail to use a photo of their cover for their story.

Further, the purpose of the Globe & Mail’s article was to inform the public on a popular genre of motion pictures. The cover photo of Gotham Watch was simply used as an example of this genre’s popularity; it was but a small portion of the overall story. So, if Gotham Watch didn’t have the authority to permit the Globe & Mail to use the photo, a defence of fair dealing would have protected the use of it.