Federal Court of Appeal Upholds Finding of Copyright Infringement Against Trend Hunter Inc.

On September 15, 2021, the Federal Court of Appeal of Canada (FCA) issued its decision in Stross v Trend Hunter Inc., 2021 FC 955, upholding the decision of the Federal Court (FC) finding that Trend Hunter Inc. (Trend Hunter) was liable for copyright infringement as its use of photographs did not fall under the “news reporting” exception and was not “fair dealing”.

In 2018, photographer Alexander Stross brought a simplified action against market research firm Trend Hunter, after the latter used Stross’ photographs in a website post without permission.   The FC awarded Stross $3,983.40 in damages.  Trend Hunter appealed.

On appeal, the FCA held that the FC did not make any palpable and overriding errors in its finding of copyright infringement.  The FCA held that Trend Hunter’s dealing did not fall under the “news reporting” exception under section 29.2 of the Copyright Act.  For the exception to apply, the source must be mentioned and the name of the author must be provided, if given in the source. The FCA found that the first requirement (to mention the source) was met, as Trend Hunter’s website post referenced online publications that displayed Stross’ photographs.

However, the FCA found that the second requirement (to provide the author name) applied in this case and was not met. The FCA rejected Trend Hunter’s argument that the provision of hyperlinks to the source articles where Stross was credited was sufficient to meet this requirement. The FCA therefore concluded that the FC “made a palpable error, but not an overriding one” in concluding the website post did not meet the requirements for “news reporting”.

In determining whether Trend Hunter’s use of the photographs constituted fair dealing under the Copyright Act, the FCA focused its analysis on factors such as the purpose of the dealing, the amount of the dealing, and alternatives to the dealing.

Specifically, the FCA agreed with the FC that the purpose of Trend Hunter’s dealing was commercial in nature, for the narrower benefit of Trend Hunter and its clients, with no benefit to Stross and no broader public interest purpose. The FCA also found that despite the reduced quality and resolution of the photographs, the images were essentially reproduced in their entirety and thus did not constitute fair dealing. Lastly, the FCA found that the FC did not err in concluding that there were alternatives to the dealing that could have been used in this case.

The FCA ultimately upheld the decision of the FC, dismissing Trend Hunter’s motion and appeal and awarding costs to Stross.

Summary By: Steffi Tran