• About
  • Offices
  • Careers
  • Students
  • Alumni
Background Image
Logo Bennett Jones
  • People
  • Expertise
  • Resources
  • Search
  • Menu
  • Search Mobile
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z All

FEATURED AREAS

Energy
Funds & Finance
Mining
Capital Projects
All Industries
Crisis & Risk Management
Environmental, Social & Governance
Governmental Affairs & Public Policy
All Practices
Insights
Media
Events
Subscribe
COVID-19 Resource Centre
Business Law Talks Podcast
Kickstart
New Energy Economy Series
People
Featured Areas
All Practices
All Industries
About
Offices
Careers
Insights
Events
Search
Search
 
Blog

Yes—Copying Photographs from the Internet Can Get You into Trouble

April 12, 2017

Written by Dominique T. Hussey, L.E. Trent Horne and Jeilah Y. Chan

Although it happens all the time, reproducing photographs found on the internet for use in business is fraught with risk.  Businesses should only copy images where there is clear permission to use them—or face a substantial damages award.

Case

Trader Corporation v. CarGurus, Inc., 2017 ONSC 1841

IP Type

Copyright

Summary

CarGurus is the second largest online digital platform for new and used vehicles in the United States. In early 2015, CarGurus entered the Canadian market and became a direct competitor of Trader Corporation, known for its AutoTrader website.

When CarGurus entered the Canadian market, it continued some of the business practices it used in the United States. This included "indexing" or "scraping" dealer websites to obtain photographs of vehicles to post on its own website. CarGurus' evidence was that it had been following this practice for years without encountering problems from dealers.

CarGurus’ competitor, Trader Corporation, offers to dealers a "capture" service. This involves Trader's own photographers going to dealerships and taking photographs of vehicles to include in listings. The photographs then appear on the dealers’ own websites, and on autotrader.ca. By scraping the websites of Canadian dealers, CarGurus reproduced photographs taken and owned by Trader.

The court ruled that the photographs were protected by copyright. The fact that Trader photographers followed standardized procedures to create the photographs did not eliminate the use of skill and judgment needed for copyright protection; capturing the images was not a simple mechanical exercise. 

Through affidavits from the photographers, Trader proved that it owned copyright in about 150,000 different images. By posting these photographs on its website, even just by “framing” photographs located on remote servers, CarGurus, without consent, made them available to the public by telecommunication and therefore infringed Trader's copyright.  

CarGurus unsuccessfully argued the defence that it had merely provided an “information location tool”. It also argued its use of the copyrighted works was fair dealing, which the court rejected. While from a consumer’s perspective the use of the photographs was fair-dealing research, CarGurus had alternatives to posting the Trader photos (e.g., taking its own) and was using them to squarely compete with Trader.

Trader elected to receive statutory damages  and asked for more than $76 million in compensation, a number derived from simple math–152,532 photographs times $500 (the lowest end of the statutory range). The court exercised its discretion to reduce the amount, finding that it would be grossly out of proportion to the infringement. The court awarded $2 per photo, an amount determined having regard to fees normally charged by Trader, the absence of actual damages, CarGuru's profits in Canada (none) and the need for deterrence. In the end, CarGuru was ordered to pay more than $300,000 in damages, and may also be liable to pay Trader’s litigation costs.


For further information on how to protect and enforce your intellectual property rights, contact Dominique Hussey, Jeilah Chan, or another member of the Intellectual Property Litigation team.


Equip is our platform for curated, key intellectual property cases.  Delivered weekly, Equip distills the current substantive and procedural issues in Canadian IP litigation, equipping you with the key points for your business.

Authors

  • Dominique T. Hussey Dominique T. Hussey, Vice Chair and Toronto Managing Partner
  • Jeilah Y. Chan Jeilah Y. Chan, Partner, Trademark Agent

Read the New Energy Economy Series

Related Links

  • Insights
  • Media
  • Subscribe

Recent Posts

Blog

The Rise of ESG Bonds in Corporate Financing

March 02, 2021
       

Blog

Another Reminder of the Low Bar for Class Action Certification [...]

March 01, 2021
       

Blog

Are Gun Manufacturers Liable for Mass Shootings?

March 01, 2021
       

Blog

Evidence of Harm Required To Advance Class Action Following Data Breach

February 24, 2021
       

Blog

Site Rehabilitation Program Periods 5 and 6 Further Expand Program Scope

February 22, 2021
       

The firm that businesses trust with their most complex legal matters.

  • Privacy Policy
  • Disclaimer
  • Terms of Use

© Bennett Jones LLP 2021. All rights reserved. Bennett Jones refers collectively to the Canadian legal practice of Bennett Jones LLP and the international legal practices and consulting activities of various entities which are associated with Bennett Jones LLP

Logo Bennett Jones