Lawsuit to test journalistic use of images taken from Quebec singer’s web site

The lawyer acting for up-and-coming pop singer Mia Girard (who goes by her first name only) says fair dealing provisions built into copyright law won’t get TQS Inc. off the hook for the unauthorized use of nude pictures of the chanteuse. Mia is suing the Quebec broadcast network and the producers of its info-tainment show Flash for several hundred thousand dollars for damage done to her reputation in an interview broadcast interspersed with pictures originally posted to her web site of her in the altogether. Mia’s lawyer Michel Savonitto says that while it’s unlikely a judge will find in favour of his client on defamation charges, the unauthorized use of the images was a clear violation of his client’s copyright. The suit arises from a February 5 broadcast of Flash, produced by Montreal-based Zone3 Inc., which is also named in the suit. In a June 18 media release by the singer, it was alleged that the clip "lacked professionalism and was motivated by bad faith." In the interview shown on TQS, the reporter’s questions – apparently intimate and offensive in nature – were replaced with nude pictures of Mia copied from her web site "without authorization and despite the very clear warnings against such activity appearing on the web pages. The result is unspeakable." Mia is a former exotic dancer, named Miss Nude Sweetheart Canada in 1996 and Miss Nude Canada in 1997-1998. As a result of the broadcast, Mia is suing TQS, Zone3, researcher Geneviève Loiselle, and interviewer Patrick Masbourian for $175,000 for defamation, infringement of her right to the image, loss of profits and revenues in the Province of Quebec, and moral and punitive damages. Mia’s company, M.G. Entertainment Inc., is also seeking $125,000 in punitive damages for the unauthorized use of the photographs in contravention of its copyright. M.V.S. World Inc., which owns the web site on which the pictures were posted, is seeking $75,000 in damages for the appropriation of the photos. Savonitto admits proving defamation or damages to Mia’s character might prove difficult. As he told CNM, "She has a past and she has to live with it." The media release claims that since the clip aired, the singer has not been able to obtain airtime for her song or video, even as they were performing well in other markets. But, says Savonitto, the unauthorized use case is clearer. "If someone had gone to the web site for Playboy or Penthouse or sites like that and used images for their own purposes to make money, I don’t think that’s proper." While neither TQS or Zone3 is commenting on the case, it will be interesting to see how the court applies copyright law involving this digital issue. While the clear warning on the site ("Nothing contained on miasecretworld.com may be reproduced without express written permission") might strip the producers of any implied licence to use its publicly available contents, say observers, fair dealing for the purpose of news reporting does constitute an exception to the law. Under the provisions of section 29.2 of the Copyright Act, however, those using a fair dealing exception must also cite the source of the material. It is unclear whether Flash did so. Roger Hughes, a noted copyright expert, notes that fair dealing provisions are also interpreted narrowly by Canadian courts, and the recent CCH Canadian Ltd. v. Law Society of Upper Canada decision set out several tests, including one of fairness, which must be met by defendants (CNM, May 31/02). Mia has argued in her court filing that the Flash clip was malicious – likely a factor that will be considered by the court in deciding whether the use was fair. Hughes also points to the special nature of Quebec civil law, including a "right of personality" provision that prohibits parties from profiting from the unauthorized use of images of people. After preliminary hearings and motions this summer, it’s likely the suit will proceed to trial this fall.

Lawsuit to test journalistic use of images taken from Quebec singer’s web site

Broadcast | June 26, 2002

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