In this case, a photojournalist who was on the scene in New York
City on September 11, 2001, licensed a number of still photographs
to the CBC for use in a documentary about the 9/11 attacks.
The photos were included in 2 versions of the documentary, and the
documentary was aired a number of times betwen 2002 and 2004. The
question was whether all of the broadcasts were within the scope of
the licenses granted by Leuthold as the copyright owner. More than
one license was granted through various emails, faxes and license
agreements between the parties.
Taking this case as a cautionary tale, here some of the common
pitfalls to watch for:
The specific works must be identified - which specific photos
or copyright-protected works are included in the license?
Who are the licensees? - in this case network affliliates did
broadcast the works, and CBC was liable for the infringing
broadcasts of these regional affiliates or stations.
The scope of a broadcast license should be clear on whether the
rights include one or more broadcasts, in one or more time-zones,
and by one or more affiliates. In this case, there was considerable
debate about whether CBC Newsworld was included in the license. The
court decided that it was included, by looking at the surrounding
circumstances, though the terms of the license were not entirely
The scope of any license should be clear on whether the license
is exclusive or non-exclusive.
Consider whether the license should state the geographic or
territorial scope. In this case, the license referred to Canadian
broadcast rights, but CBC Newsworld international also broadcasts
into the US and internationally.
Consider the impact of follow-up emails and
correspondence which might be used as a de facto license,
or to interpret the meaning of the license.
Ultimately, the court found that the CBC had infringed copyright
in the photographs in six broadcasts which were not covered by the
licenses. Damages of US$19,000 were awarded.
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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