A Whale of a (Copyright) Tale: An Update

whaleA few weeks ago I posted a blog about a lawsuit filed by the Vancouver Aquarium against film-maker Gary Charbonneau for copyright infringement. Charbonneau had made a film critical of the Aquarium’s cetacean (whale, porpoise and dolphin) rehabilitation program, in which he had used, without permission, copyrighted material from the Aquarium’s website in his film. The Aquarium sued for damages and sought an injunction compelling Charbonneau to remove the film from his website, and restraining its publication elsewhere, such as on Youtube. 

In his response, Charbonneau did not dispute that he used content produced by the Aquarium without securing permission, but claimed that he did so for “research and educational purposes”, in accordance with fair dealing guidelines. He also stated that he credited the Aquarium as the source of the material and that the film has not been distributed for commercial purposes. The Aquarium has disputed this, pointing out that there have been paid screenings and that Charbonneau is using the film website for crowd-funding. Charbonneau’s lawyers have also accused the Aquarium of trying to block distribution of the film and to silence him. The Aquarium’s legal team responded by saying that Charbonneau could simply edit out the material in dispute.

The British Columbia Supreme Court has now reached a decision, granting the Aquarium an injunction against the posting of the original film, and instructing Charbonneau to remove within 7 days about 15 clips amounting in total to about five minutes of video from the hour long film. The injunction is temporary pending a trial which may not take place for several months. In her finding, the judge determined that “irreparable harm” would be done by leaving the contested parts of the film online. Charbonneau immediately claimed victory noting that the Aquarium had tried to remove the entire film from public websites. Indeed, some press outlets bought into this narrative, proclaiming that the Aquarium achieved only a “partial victory” because just the copyrighted clips in dispute will be removed. Certainly that is Charbonneau’s take on the decision. He is reported to have said that the film will stand even without the edits. “A lot of the other stuff was filler”.

Without taking a position either for or against the Vancouver Aquarium’s cetacean policies, on which reasonable people can disagree, one has to wonder why Charbonneau didn’t find a less legally risky way to access film footage of whales in captive settings if the material he lifted from the Aquarium website was just “filler”. Copyright law, reflecting both the rights of creators and the legitimate exceptions for users, has a long history and the ease of lifting images from the Internet does not invalidate well-established legal principles.

At the moment, it looks like a pretty clear victory for the Aquarium in terms of protecting its copyright, although a final decision on whether the copyright exceptions that Charbonneau claims are valid will be determined later at trial. That said, Charbonneau has certainly benefited from the publicity. At last count, some 25,000 people had viewed the film (or parts of it) on Youtube, and the original version was still up pending editing. Despite the publicity however, Charbonneau may be facing substantial damages if he is found to have violated the Aquarium’s copyright. You would think that Charbonneau, as a film-maker and creator himself, would have given this greater thought. It would have been so much simpler and straightforward to have taken a little more care to consider the implications of using copyrighted content without permission, and  accessing clearly-legal alternate sources if necessary. That is the true moral of this story.

© Hugh Stephens 2016. All Rights Reserved.

9 thoughts on “A Whale of a (Copyright) Tale: An Update”

  1. I’ll wait for his film to come out and will rip off his original footage and use as my own to see if he is a true hypocrite. Can’t imagine his logic. This court ruling protects him just as much.

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      1. Copy some material even for publicity, amounts to copyright infringement. Charbonneau was not justified to do so.

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  2. Seriously? You think the Aquarium are objecting over their copyright? They’re simply using copyright law to censor, blind Freddy can see that.

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    1. Perhaps you are right that stopping the film was their main motivation, but a) the fact that Charbonneau used their own material without permission to trash them surely has to be a factor in the Aquarium’s reaction and b) by doing what he did, Charbonneau gave the Aquarium the grounds to take him to court. Not smart. My point was that copyright practices and laws are relevant, important and need to be taken into account. Ignoring them leads to the outcome that we are witnessing with the lawsuit by the Aquarium against the film-maker.

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      1. So why didn’t the Aquarium sue him for defamation? Why did it use copyright law to censor his speech? I’d have to imagine his usage of those video clips would fall under Fair Use/Fair Dealing (as he was ostensibly using them for the purposes of commentary or criticism). What makes this a situation worth celebrating?

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      2. Who is celebrating? This is an entirely avoidable situation. I don’t see the Aquarium as censoring, since all they asked for legally, and all they have obtained so far, is an injunction against the use of their own material without permission in the film. To me, the subject matter of the film is not relevant. I am not taking a stand either for or against the Aquarium’s cetacean policies as, frankly, I just don’t know enough about the subject. Some have suggested that the Aquarium should sue the film-maker for defamation. That is an entirely different issue. Maybe they will; maybe they won’t and if they do, who knows if they would prevail? But what seems pretty clear so far is that the rules governing use of copyrighted materials were probably not respected. It is possible that Charbonneau’s use will fall under the educational fair dealing exception (that is for the Court to decide as I have noted) but I doubt that he helped himself to the footage from the Aquarium website to prove a legal point; rather it was the easy thing to do. After all, according to him, the material he appropriated was “just filler”. The law is there to protect the rights of creators (and users), and these rights include the right of the creator to deny or license publication, subject to specified exceptions. In time, we will see if Charbonneau’s use met the criteria for the exception. But there were certainly easier and less controversial ways of going about this.

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