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Intellectual Property

$20-million obituary piracy judgment likely a symbolic victory

A $20-million judgment against a website for pirating obituaries may turn out to be a symbolic victory for the families of the deceased, says Toronto business lawyer Bill Northcote.

In her decision, Federal Court Justice Catherine Kane found the now-defunct website had infringed the copyright of class members — families of more than one million Canadians whose obituaries and pictures were reproduced on the website.  

“Unfortunately, the likelihood of collection is probably remote, as is indicated by the fact that the website didn’t defend the claim at all,” says Northcote, partner with Shibley Righton LLP’s Toronto office.

He says he was somewhat surprised to see that the judge declined to award punitive damages, given her description of the defendant’s “obituary piracy” as “high-handed, reprehensible and ... a marked departure from standards of decency.”

“I suspect the quantum of the other damages were so high that it didn’t seem appropriate to award, even though there may have been sufficient grounds,” Northcote tells AdvocateDaily.com.

According to Kane’s decision, the website’s terms of service asserted copyright over all its contents and generated profits via advertising for third-party businesses, as well as the sale of flowers and virtual candles for posting on individual obituary pages.

The representative plaintiff wrote an obituary for her father following his death in early 2017 and allowed a funeral home to publish it, only to discover that it had been reproduced on the defendant website without her permission.

“The evidence of many Class Members is that they had written the obituaries in a personal way and that their discovery that the obituaries had been reproduced with the addition of sales of candles and other advertising was an emotional blow to them. In some cases, inconsistent information was added, for example, inaccurate details about the deceased or options to order flowers where the family had specifically discouraged flowers,” the judge wrote.

Following an uncontested trial, the judge ordered a permanent injunction prohibiting the website and its representatives from infringing the copyright of the class members. She also awarded the class $10 million in statutory damages for the copyright violations, plus a further $10 million in aggravated damages.   

However, Kane declined to award the plaintiffs any damages for breach of moral rights. Although they had produced plenty of subjective evidence of their embarrassment and anger about the website’s use of their material, the judge found the plaintiffs’ case lacking in terms of the objective evidence required for a damages award based on a breach of moral rights, showing that a person’s honour or reputation has been prejudiced.    

“Moral rights is an area of copyright law that seems not to be well-understood among members of the public,” Northcote says. “I would have thought they could have obtained some outside evidence from members of the public, testifying that reputations were tarnished because of the association with commercial elements.”

Still, he says that may not have been enough to meet the burden for moral rights because of the changing nature of advertising in the online world.

“In this day and age, the connection between the copyrighted work and the commercial activity is not always as obvious, because people know that the advertising that pops up may have more to do with the algorithms of Google or whoever else, rather than an endorsement by the author of the work,” Northcote says.

Even his more sophisticated commercial clients struggle with the concept of moral rights, largely because of the significant difference between the U.S. and Canadian copyright regimes.  

“I regularly have to explain to clients exploiting commercial rights that moral rights need to be taken into account,” Northcote says. “Licensees who fail to get a moral-rights waiver can get themselves into trouble.”

He says the precedential value of the obituary decision is limited by the fact that the claim was not defended, allowing potentially significant issues — such as the authorship of individual obituaries — to be glossed over.

“I expect that the practice varied quite a bit. In some cases, family members probably wrote them, while in others, it could have been the funeral home,” he says. “If money is ever collected, another proceeding may be needed to adjudicate that issue.”

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