Copyright Infringement & Licensing Pitfalls

The case of Leuthold v. Canadian Broadcasting Corporation , 2012 FC 748 (CanLII) illustrates several common licensing pitfalls.

In this case, a photojournalist who was on the scene in New York City on September 11, 2001, licensed a number of still photographs to the CBC for use in a documentary about the 9/11 attacks.  The photos were included in 2 versions of the documentary, and the documentary was aired a number of times betwen 2002 and 2004. The question was whether all of the broadcasts were within the scope of the licenses granted by Leuthold as the copyright owner. More than one license was granted through various emails, faxes and license agreements between the parties.

Taking this case as a cautionary tale, here some of the common pitfalls to watch for:

  • The specific works must be identified - which specific photos or copyright-protected works are included in the license?
  • Who are the licensees? - in this case network affliliates did broadcast the works, and CBC was liable for the infringing broadcasts of these regional affiliates or stations.
  • The scope of a broadcast license should be clear on whether the rights include one or more broadcasts, in one or more time-zones, and by one or more affiliates. In this case, there was considerable debate about whether CBC Newsworld was included in the license. The court decided that it was included, by looking at the surrounding circumstances, though the terms of the license were not entirely clear.
  • The scope of any license should be clear on whether the license is exclusive or non-exclusive.
  • Consider whether the license should state the geographic or territorial scope. In this case, the license referred to Canadian broadcast rights, but CBC Newsworld international also broadcasts into the US and internationally.
  • Consider the impact of follow-up emails and correspondence which might be used as a de facto license, or to interpret the meaning of the license.

Ultimately, the court found that the CBC had infringed copyright in the photographs in six broadcasts which were not covered by the licenses. Damages of US$19,000 were awarded.

For copyright licenses, get advice from the Field Law Intellectual Property & Technology Group.

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