Meera Nair

Fair Dealing, a successful transformative use

Allen v. Toronto Star Newspapers Ltd. (1997) 36 O.R.(3d) 201 (Div. Court).

During the Federal Liberal leadership campaign of 1990, the Toronto Star featured candidate Sheila Copps and examined her past career in politics against her then-current political aspirations. As part of the feature the newspaper reproduced a magazine cover, published in 1985 by Saturday Night, where a photograph of Copps figured prominently.

The cover, created with Copps’ consent, depicted her dressed in black leather and seated astride a Harley Davidson motorcycle. In the Toronto Star article the cover was placed with a more recent, more conventional, photograph of Copps. The original Saturday Night article had dwelt upon Copps’ reputation as a member of the opposition “Rat Pack”; the Toronto Star used the cover to indicate her change of image as she became part of the Canadian political establishment.

While Saturday Night did not object to the use of its cover, the photographer of the original pictures, Jim Allen, successfully claimed copyright infringement at the first trial. However, the decision was reversed on appeal; the court accepted that “the defence of fair dealing applies in the circumstances of this case.”

The heart of the dispute began from Allen’s claim that he had copyright in his original photograph of Ms. Copps. In his view this fact precluded the use of the cover, which included his photograph, in the story published by the newspaper. Allen’s copyright in his photograph was not disputed. But at appeal, the case turned on a new question: how might copyrighted material be legitimately utilized in the creation of a new work?

The court explained:

The use by the Toronto Star on March 10, 1990 of a photographic reproduction of the November 1985 cover of Saturday Night was related to then current news, the leadership aspirations of Ms. Copps. The other photo used to illustrate the feature article on Ms. Copps portrayed her in a more traditional political appearance in 1990. It was apt for the newspaper to contrast the image she was willing to project in 1985. The change in her image was the thrust of the article.

The cover was not reproduced in colour as was the original. The cover was reproduced in reduced form. The news story and accompanying photos received no special prominence in the newspaper. They appeared on an inside page of an inside section. These factors are indications that the purpose of its reproduction of the cover was to aid in the presentation of a news story and not to gain an unfair commercial or competitive advantage over Allen or Saturday Night.

In our view, the test of fair dealing is essentially purposive. It is not simply a mechanical test of measurement of the extent of copying involved.

Note: The Toronto Star also argued that if fair dealing was insufficient, their actions were protected under the Charter of Rights and Freedoms. As the defense of fair dealing was accepted, the Charter question was not addressed

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