A Victoria photographer has lost his case after taking a model to court after she posted the photos he took of her on a “paid” website.
That’s according to a BC Civil Resolution Tribunal decision after Stephon Mullett filed a claim against model Samantha Frigon in a case about copyright infringement.
“The parties agreed that the applicant would photograph the respondent and neither party would pay the other for their time and services,” reads the tribunal decision. “The applicant says the parties also both agreed they would not make any money off the photos by selling them or posting them on ‘paid’ websites, but they could post them on free social media sites. The applicant says he discovered the respondent had posted his photos on a paid website without his permission or the copyright to do so.”
Mullett was claiming $2,500 in damages. Frigon said that exactly how she could use the photos was unclear.
“The respondent admits to posting the photos on a paid website, but the respondent says the parties never agreed that was not permitted,” said the decision. “The respondent says they removed the photos from the website at the applicant’s request, and that the only money they earned from the photos was the $10 the applicant paid to access them. The respondent also says the parties never discussed the value of the photoshoots they did together, so they say the applicant is not entitled to the claimed damages.”
Mullett argued that Frigon emailed him at one point admitting she had made a mistake.
“The respondent stated ‘it was perhaps an error in judgment to use the photos,’” said the tribunal decision. “However, contrary to the applicant’s submission, I find that comment is insufficient to establish that the respondent knew posting the photos was a breach of their agreement.
“When read in the context of the entire email, I find the respondent was acknowledging that with hindsight and given the applicant’s reaction, they perhaps should have double-checked whether the applicant was okay with posting the photos on a paid site. I find this generally supports the respondent’s submission that the parties had not specifically discussed the issue. The respondent also stated that they had since received express permission from all other photographers they worked with to post their photos on paid websites.”
The CRT decision was also unconvinced that it was clear how Frigon could use the photos.
“Overall, I find it unproven that the parties specifically agreed the respondent would not post the applicant’s photos on paid sites,” the decision said. “As the parties clearly agreed to both use the photos for business purposes, in the absence of an express term otherwise, I find there is little distinction between posting photos on free sites and posting them on sites requiring a paid membership to see them. As I find there was no express term that the respondent would not post the photos on paid sites, I find the applicant has not established that the respondent breached the parties’ contract.”
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