Written by Martin Kratz, QC
Thomson v. Afterlife Network Inc., 2019 FC 545, is a Federal Court decision in which the Court considers the existence of copyright in obituaries used in an e-commerce context.
DT was the representative plaintiff in a class action lawsuit claiming that posted obituaries and photographs, that were authored and taken by the plaintiff and other class members without their permission and thereby Afterlife infringed the copyright and the moral rights of the class members.
Afterlife operated a website that contained over a million obituaries in Canada and on which Afterlife reproduced obituaries and photos from the websites of Canadian funeral homes and newspapers and sold, for its own profit, flowers and virtual candles and hosted advertising for third-party businesses. The Terms of Service on Afterlife’s website asserted that Afterlife owned the copyright in the website contents.
The plaintiff’s father had died in January 2017. She authored an obituary for her father and allowed the funeral home to publish it, along with a photograph she had taken of her dad. In January 2018, she discovered that the Afterlife website displayed, without her permission, her father’s obituary and photograph along with options to buy flowers and virtual candles on the same page.
The plaintiff submitted that Afterlife caused people who viewed the obituary on the website to believe that she had consented to its use and that she was profiting from such sales. The plaintiff expressed outrage and mortification that others would think she sought to profit from her father’s death. Similar evidence was provided by other class members.
The class action lawsuit was filed and certified by the Federal Court. Afterlife’s solicitor withdrew and Afterlife did not participate in a defense of the lawsuit. Afterlife shut down its website about one month after the class proceeding was commenced and directed all website traffic to a new website, similar in posting obituaries and sells advertising, flowers and virtual candles in association with the obituaries, but the obituaries are in a template form rather than copied from the authored works.
The plaintiff asserted copyright infringement, that it called ‘obituary piracy’ and also claimed that her honour and reputation were prejudiced by the association of her original work with advertisements, in violation of her moral rights. She felt that she felt her honour and reputation were diminished because others may think that she was trying to profit from her father’s death.
In addition to injunctive relief the plaintiff sought aggregate damages representing statutory damages for the copyright infringement, damages for breach of moral rights, aggravated damages and punitive damages submitting that aggregate damages are appropriate as there are thousands of class members and that they have all suffered damages that would be difficult to quantify on a case-by-case basis.
On the question of statutory damages the plaintiff noted over one million obituaries on the Afterlife website with most having both a photo and obituary text.
The Court applied CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13,  1 SCR 339 to find that the obituaries and photographs were original works in which copyright subsisted. The Court found the postings on Afterlife’s website provide evidence that it reproduced the original works and given the lack of permission, found infringement of the author’s copyrights.
On the moral rights claim the Court applied Maltz v Witterick, 2016 FC 524, finding that is both a subjective and objective aspect to the test to establish infringement of moral rights and Collett v Northland Art Company Canada Inc., 2018 FC 269 that “an author’s right to the integrity of a work includes not only a highly subjective aspect, which the author of the work must establish, but also an objective element requiring evaluation of the prejudice to that author’s honour or reputation based on public or expert opinion”.
In the present case Afterlife associated the original works with a product or service by adding the sale of ads, flowers and candles to the pages displaying obituaries. The Court noted that the author of the original works must establish not only their own subjective view that their honour or reputation has been prejudiced but also provide objective evidence of the prejudice. The Court found that while the plaintiff was sincere in her belief that both her honour and reputation have been prejudiced, no objective evidence had been provided, such as public opinion or expert evidence. The Court concluded that the Court did not have the ability to make a determination as to prejudice without objective evidence and therefore the Court could not find that Afterlife has infringed the moral rights of the plaintiff and class members.
The Court issued an injunction binding Afterlife but declined to issue a wide injunction encompassing other works without evidence showing it was justified.
Applying the minimum statutory damages to the two million infringements (photos and obituary) would be disproportionate so the Court awarded aggregate damages of $10,000,000.
The Court considered Afterlife’s conduct on class members had been significant, they were high handed, in reluctance to remove the obituaries and in “its assertion of its own copyright in the original works pirated from the class members, and in its apparent callousness regarding the impact on the class members”. The Court noted the size of the class and that the pro-rated distribution of any amounts recovered would result that “none of the class members will truly be adequately compensated”. In these circumstances, the Court awarded aggravated damages in the amount of $10,000,000 but declined to order further punitive damages.
The case is interesting to show how quickly damages from large numbers of infringements can scale in an e-commerce context. The case is a caution for all website operators to carefully assess the right that they have to post content on their website.
The case is also an important reminder on the test to claim damages for violation of moral rights. Objective evidence must accompany subjective evidence of the prejudice.