I read the text and it is quite coherent with what you say in your post #42.
Maybe I am retarded a bit :blink: but I don't find this coherent with the sentence which was linked. If the consent is necessary in any case for a picture of a person in a public place not belonging to a newsworthy event, then why three degree of judgement, why the talk in the motivation of the sentence about the embarrassment and the prejudice, and about being able to contact the person?
One would infer that without prejudice and without the possibility to contact the person the publisher would have won, and that would not be coherent with the text by the photographer IMO.
The sentence that you highlighted in the excerpt you included in post #43 came from one of the dissenting judges - so it is not the law.
The majority decision is the law - and it essentially found that personal feelings of "embarrassment" are enough to found a claim of damages.
Are you sure?
Originally Posted by MattKing
It's a separate paragraph between two dissenting opinions (Lamer above, Major below). I thought it belonged to the main body of the sentence as it acknowledges the right of the person portrayed. The dissenting judges IIGIR would have decided against the portrayed person and in favour of the publisher.
Well, the majority decision is a sentence. If the feeling of "embarrassment" is enough to found a claim of damages, this means it only applies to "embarrassing" images, and that "embarrassment" must be acknowledged by the judge, isn't it?
Originally Posted by MattKing
What I suspect and what you seem to confirm is that no embarrassment, no damages.
Embarrassment can cause damages in Italy as well, and a bit everywhere, Québec not being special in this matter.
I think that you are reading from what is referred to as the "head-note" at the beginning of the report of the case. That is a summary written by the editors of the reporting service, not the decision itself. And the paragraph you underlined earlier was merely the second paragraph in the two paragraph summary of Justice Major's dissenting opinion.
And are we misunderstanding each other about the meaning of the word "sentence". As this is a private law case, there is no "sentence" involved in the decision - by "sentence" I thought you meant what Wikipedia defines to as: "A sentence is a grammatical unit consisting of one or more words that that are grammatically linked. A sentence can include words grouped meaningfully to express a statement, question, exclamation, request, command or suggestion."
The other factor that may be complicating matters is that in Canadian law in general, there is a real reluctance to give compensation for "embarrassment" or hurt feelings - generally there is only compensation for economic loss or physical damage to person or property.
Oh yes, I meant "sentence" as in "judgement".
I now see that I was reading and quoting from previous degrees of judgement which are reported in the document after the abstract. Also the dissenting opinions are from a previous degree of judgement.
The sentence of the Supreme Court comes at the end of the document. The concentrated juice is at paragraphs 60 - 65.
Basically according to this judgement artistic expression, as I read it now, does not overcome the right-of-image, while a stronger public interest (information useful to society) would. The entire judgements seems to have concrete consequences for the artistic publication of "candid portraits" (or for the artistic publication of portraits without consent) especially when the person might have been contacted by the photographer.
I still don't understand if and how it would apply, for instance, to a person shouting during a public manifestation when the person is the only one portrayed in the picture (which would be newsworthy, but would depict only that person).
I also wonder now how a similar case would be dealt with in Italy. Photographers doing portraits normally ask for a model release. A "candid portrait" in the park would probably not be sufficient to avoid the need for the model release. A picture where the person is at full figure or so, immersed in the scene, (e.g. a person reading a newspaper in the park, with some substantial park background), would be in a grey zone in Italy as well if there was some kind of commercial intent (selling the portrait as art for instance) or if publication in a magazine were involved.
I frankly suppose that the person involved, the one sitting in the park bench, in Italy should either claim defamation or that it is precisely his image which gave value to the image. In the case of a portrait, that can always be claimed. In the case of the person in a bench in the park, the photographer would say that the scene is the same whoever the person on the bench.
That, in Québec, would instead make a situation where the person on the bench might reasonably expect to win a case.
In the US the copyright law has changed over the years and I guess one has to go back to what the law was when the photographs were taken. I did a bunch of research a couple years ago when I acquired several hundred processed 4X5 negatives that were in the home of a friend. She had purchased the home from a retired photographer back in the late 80's. He had just left his negatives behind. The negatives were from the 1950's through the 1970's of local functions with boy scouts, news paper stories around my local area, and lots of weddings. I found some 4X5 negatives taken of a good friend of mine when he was in the scouts in the 1960's...pictures of himself he had never seen.
My desire was to get the wedding negatives into the hands of those married couples or their descendants. I considered scanning and posting them on my pbase site, but after trying to slog through the copyright laws, I gave the idea up. The photographer is now deceased but his son and daughter are alive and in their 60's. I have not tried to contact them as they do not live in my area (I have not tried to locate them).
As the law stands, I believe, I own the physical property - meaning, I own the 4X5" plastic sheets and the silver emulsion coating on them. The family of the photographer has no right to them - but - they do own the rights to the image that has been formed their in.
I may contact the family of the photographer just to get a feel for their desire. I am guessing they probably have no idea that their fathers photographs still exist, and they may or may not care. They are probably not worth anything (they are really not good images compositionally) other than historical or sentimental.
The relevant law is the law in effect today. As a member of the bar I suggest you get a legal opinion from an attorney before you post any photos on a public medium which might make you liable to criminal or civil prosecution. But the fact is why spend a thousand dollars in legal research when it is plain that the answer is DON'T POST ANYTHING! The law is very strict in other countries and not clearly established. Why take a chance? Don't rely on things you have read on the internet. It is not a defense at law.