The plaintiff, WandaRer, is aCanadian and a self-described artist, photographer, and social media influencer. For almost a decade, Ms. Rer has traveled the world with her camera. Ms. Rer has her finger on the pulse of millennial style and culture and has amassed a substantial social media following.

[2] The defendant, Bestmont Hotels, is a Canadian luxury hotel chain. Over the past century, Bestmont has built a strong reputation for high-end hotels located in prime destinations across Canada. Each hotel is carefully designed and curated to provide guests with an authentic experience inspired by its destination. Apart from their locations, Bestmont's hotels are perhaps best known for their unique designs and the famous red marquee that adorns the entrance to each one of its ten Canadian hotels. The parties agree that Bestmont's red marquee is well-known and instantly recognizable by most Canadians.

[3] Ms. Rer recently spent a year traveling and staying at each of Bestmont's destinations. Ms. Rer was inspired by the uniqueness of Bestmont's hotels, which she set out to document through a photo project. The project was called "Faades" and involved photographs of the entrance of each of the Bestmont hotels and the famous Bestmont marquees.

[4] A photo was taken directly in front of each of the Bestmont hotels at a distance of 100 feet, with the marquee centered in the frame. Ms. Rer's evidence was that this distance was specifically chosen to allow the marquee to be prominently featured as the focus of the photograph, while still depicting the unique design features of each hotel's faade. Ms. Rer further testified that the exact same technique and camera set-up was used for each Bestmont hotel, so that the resulting images could compare and contrast the similarities and differences in the design and atmosphere. I will refer to these ten images as the "Original Photos".

[5] Drawing from her experience as a social media influencer, Ms. Rer, then selected and applied filters to the Original Photos using a popular social media platform. For each of the Original Photos, Ms. Rer applied filters known as 'sepia', 'oil painting', 'pixilation', and 'pencil drawing'. Ms. Rer testified that she chose these specific filters using her judgment and experience as a photographer and social media influencer, due to the popularity of each filter and the enhanced effect they would have on the depiction of the hotel design and marquee. I will refer to these forty filtered images as the "Filtered Photos". Following her project, Ms. Rer approached Bestmont offering to license her Original and/or Filtered Photos for use in Bestmont's marketing materials at a rate of $3,000 per image. To demonstrate the quality of her work, Ms. Rer provided Bestmont with high resolution electronic copies of the fifty images, including the Original and four Filtered Photos of each Bestmont hotel. Ms. Rer advised that if a different marketing 'feel' was desired, she was happy to consult with Bestmont and select and apply different filters to create different or additional filtered images.

[6] Bestmont responded by rejecting Ms. Rer's proposal and instead accused her of infringing Bestmont's copyright in its marquee and hotel designs. Bestmont demanded that Ms. Rer destroy all copies of the Faade photographs and, despite Ms. Rer's repeated requests, refused to return Ms. Rer's package. Subsequently, Bestmont decided to use the Faade photographs, not in its marketing materials, but instead to decorate the interior of its hotels.

[7] The evidence indicates that Bestmont took the electronic version of each Original Photo and applied eleven different filters to create dozen images for each hotel. The filters employed by Bestmont included filters called "sepia", "oil painting", "pixilation", and "pencil drawing", though different photo editing software was used. Bestmont printed each photo on photographic paper and framed the twelve versions of each hotel's Faade photo and used them to decorate the hallways of their guest floors. No attribution or credit to Ms. Rer was provided.

[8] Upon learning of Bestmont's activities, Ms. Rer reached out to Bestmont and demanded her photographs be removed from the hallway displays. No response was provided by Bestmont. Seeking to assert her rights, Ms. Rer commenced a claim alleging copyright infringement, seeking a permanent injunction.

[9] Ms. Rer is also bringing a moral rights claim, suggesting that she would have printed her photos on canvas backings only, and the printing of her photographs on photographic paper offends her sensibilities as an artist. Likewise, she said when she offered her photographs to Bestmont to use she was under the impression that they were a Canadian company that cared about Canadian artists and entrepreneurs. Now that, in her words, she has been "treated so poorly" she is of the opinion Bestmont is "nothing but another lousy chain and capitalist scum" and would not want her work associated with their brand.

[10] Bestmont defended against Ms. Rer's claim, by denying that there was copyright in the Faade photographs and, in the alternative, that Bestmont's use constitute a fair dealing and was allowable under the Copyright Act. Nevertheless, before trial Bestmont agreed to remove the allegedly infringing Faade photographs from its hotels, making the requested injunction moot.

[11] Ms. Rer has not registered copyright in any of her Faade photographs in any jurisdiction.

Issues

[12] There are two issues before the Court:

[13] Does Ms. Rer own copyright in the Faade photographs, and if so, to what extent has Bestmont infringed that copyright?

[14] If Ms. Rer owns copyright in her photos, was her moral rights to the displayed works infringed?

Analysis

[15] For the reasons that follow, I find in favour of Ms. Rer.

[16] Subsection 5(1) of the Copyright Act provides that copyright shall subsist in original works. Where a defendant disputes the existence of copyright, subsection 34.1(1)(a), provides that "copyright shall be presumed, unless the contrary is proved, to subsist in the work." While originality must be present for copyright to subsist, there is a very low threshold.

[17] Originality merely requires that the exercise of skill and judgement required to produce the work not be so trivial that it could be characterized as a purely mechanical exercise, CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. A scintilla of artistic expression will suffice.

[18] I am satisfied that copyright subsists in each one of the Original and Filtered Photos. Ms. Rer exercised skill and judgement in developing her technique and camera set-up, and also through the selection and application of filters. The fact that she used filters is no bar to a finding of originality, as was the case in Geophysical Service Incorporated v. Encana Corporation, 2016 ABQB 230 where the Court held seismic drawings created by machines could still be original works given the human intervention involved.

[19] Bestmont does not dispute that it reproduced the ten Original Photos. Rather, it argues that as owner of the copyright in the underlying hotel designs and marquee, it is entitled, pursuant to section 3 of the Copyright Act, to reproduce those works in any material form, including as depicted in Ms. Rer's photos. Additionally, Bestmont argues that even if it infringed the copyright in the Original Photos it did not reproduce the filtered photos since it applied its own filters to the Originals. I disagree.

[20] Having already found that copyright subsists in each one of the Original and Filtered Photos, I reject Bestmont's arguments. Bestmont's right to reproduce its own designs does not extend so far as to allow it to reproduce Ms. Rer's originality. These works are not merely substantially similar, although had that been the case, that would have been sufficient to find a claim of infringement, Cinar Corporation v. Robinson, 2013 SCC 73.

[21] Bestmont has admitted reproducing the Original Photos and I find that this constitutes infringement. Bestmont may not have directly copied the Filtered Photos, but it is no coincidence that it chose filters corresponding to those suggested by Ms. Rer. I find that in selecting and applying its own filters, Bestmont was clearly inspired by the Filtered Photos. I therefore find that Bestmont has infringed Ms. Rer's copyright in the ten Original Photos and forty Filtered Photos and order damages and costs to be determined at a future hearing.

[22] First, the scope of Bestmont's infringement is substantial. Bestmont reproduced essentially the entire Faades project, which involved Ms. Rer traveling for a year. The infringing reproductions were widely disseminated across the country through prominent display in Bestmont's hotels for the public to see. The breadth of the infringement will mitigate in favour of an award towards the high end of the range.

[23] Second, the Court should play an important role in deterring similar conduct in the future.

[24] Bestmont is a large and sophisticated company that took advantage of a young artist. Many artists in Mr. Rer's situation would not have had the means to bring an action to enforce their rights. The power imbalance between the parties requires the Court to send a message that large corporations must respect right rights of individual content producers, and this will be taken into consideration when damages are being awarded.

[25] However, I also find that Bestmont's actions were in bad faith. Ms. Rer approached Bestmont with a proposal to license the Faade photographs. Despite its clear interest in the photos, Bestmont rejected the proposal and leveled baseless allegations of infringement against Ms. Rer, presumably in an effort to scare her off. Bestmont then proceeded to brazenly infringe Ms. Rer's copyright and ignore her repeated demands. This type of conduct ought to be sanctioned.

[26] In conclusion, Bestmont has infringed Ms. Rer's copyright in fifty works.

[27] Bestmont argued that its use of Ms. Rer's Original Photos falls under the fair dealings provisions of the Act, so despite copying these works they are not liable for infringement. I cannot see how this argument has any legs.

[28] Bestmont's argument that their use of the Photos was not commercial because there was no evidence Bestmont's use of the photographs generated any additional revenue or business advantage is tenuous at best. I do not need to find there was any discernable benefit to Bestmont's business, to find that the infringement was of a commercial nature. Nor do I understand how Bestmont's lawyers could possibly think the fair dealings provisions of the Act are applicable here when the entirety of Ms. Rer's photos were reproduced.

[29] I therefore conclude the infringement of Ms. Rer's Original Photos and Filtered Photos are not saved by any sort of users rights claims or fair dealings exceptions.

[30] Last, turning to the moral rights claims, I cannot see how Ms. Rer could possibly succeed. While I think she has successfully brought an infringement claim, none of her photos came with a signature affixed, nor do I believe that her reputation could be damaged by her photos of Bestmont's hotels could be reasonably prejudiced by their display in a Bestmont hotel.

[31] Even if Ms. Rer is now personally offended by the association, I do not think this subjective belief is reasonably held. I acknowledge, however, the leading authority on this point is Snow v Eaton Centre Ltd, (1982) 70 CPR (2d) 105. Given that this is a lower court decision case from over thirty years ago, the time might be ripe to revisit this aspect of copyright law. Nevertheless, this is not the forum to do so.

[32] Accordingly, I find the plaintiff successful on issue 1, and that Bestmont did infringe Ms. Rer's copyright in her Original Photos and Filtered Photos, and I find the defendant is successful on issue 2, as Ms. Rer's moral rights were not infringed.

[33] Damages and costs will be determined at a future date. Thank you to counsel for your helpful submissions.

Questions:

produce a blog post for your firm's website, with a maximum of 750 (ish) words.

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Answer Title Protecting Artists Rights A Landmark Copyright Case Introduction In a digital age where images are easily replicated and shared the protection of artists intellectual property rights has ... View the full answer