Intellectual Property

$20M 'obituary piracy' case sets precedent: Simpson

By Tony Poland, AdvocateDaily.com Associate Editor

A judgment awarding $20 million to grieving families for “obituary piracy” will serve as an authority in copyright law, says Toronto intellectual property lawyer John Simpson.

In the class-action lawsuit, the Federal Court found a now-defunct company violated the copyrighted work of families in order to make a profit.

According to the judgment, obituaries and photographs that had been published elsewhere were copied by the company’s website and passed off as its own content.

Visitors to the website were offered the opportunity to purchase memorial-themed products, such as sympathy cards and candles, with the revenue going to the company, court heard.

In her decision, Justice Catherine Kane wrote the website’s “conduct, aptly characterized as ‘obituary piracy,’ is high-handed, reprehensible and represents a marked departure from standards of decency.”

“The facts certainly raise a lot of eyebrows,” says Simpson, principal of IP and new media law boutique Shift Law. “There really aren’t many copyright law cases that get decided, so when they do, it draws the interest of copyright lawyers. Not only are the facts interesting, but there are also a few legal takeaways worth noting.”

He says the sole purpose of the business was to post obituaries so that people could find them and then purchase virtual candles and other products.

“There is no inherent commercial value in the obituaries themselves, so it’s not as if this business was trying to leverage someone else’s creative work to make a buck, which is the typical copyright case,” Simpson tells AdvocateDaily.com.

“I would think it would be morally repugnant if they were actually selling the obituaries as works, or licensing them to others,” he says.

One woman told court that the company “took advantage of her at her most vulnerable time of grief.”

“She expressed anger and stress as a result of her original works being used and embarrassment that someone might believe that she tried to profit from her father’s death,” Cane wrote in her judgment.

“Other class members described their intangible injuries which included a range of emotions and impact; they were sick to their stomach, saddened, mortified and angry. The impact described by the applicant and class members — that they felt exploited, outraged and disgusted, and also that they were mortified that others may think they sought to profit from their family member’s death — shows that they do not seek to profit. Financial gain is not the motivation for this action,” she added.

Simpson, who was not involved in the matter and comments generally, says while it was clear there was a copyright infringement, the applicants also sought relief for moral rights infringement, which “are the authors’ rights to the integrity of the work.”

For example, if someone takes an artist’s painting, passes it off as their own and then “puts a silly face on it” it would be considered to be both a copyright and moral rights infringement, he says.

While the court found that the website’s actions were “morally repugnant” it wasn’t proven that any moral rights were violated, Simpson says.

“What the court found here is you don’t look at the author’s feelings, you look at the work itself. There was no moral rights infringement in this case because the applicants’ own view of the impact on their dignity was not the kind of evidence that the court needs to make that finding.”

In making its decision, the court relied on a case Simpson argued on behalf of a photographer whose work was attributed to someone else and then sold. In the judgment, the Federal Court found the photographer’s copyright and moral rights had been violated.

He says the photographer’s moral rights were infringed because his name was taken off his work. However, the obituaries were not altered, and Simpson says “as gutted as the authors felt, that’s not the evidence you need for moral rights infringement.”

“Maybe that’s what the court is saying here. As egregious as this was, there has to be some extrinsic evidence — it can’t just be the author’s feelings,” he says.

“There aren’t many copyright cases that have the somewhat-complex facts like this one, and there are even fewer that involve moral rights infringement. In that respect, this case is sure to be an authority on that issue for a long time,” he says.

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