For almost a decade, the rise in popularity of social media platforms has created new methods for organizations, brands and celebrities to target their audience. Whether through promotional tweets, posts on Instagram, or Periscope shopping excursions, there are countless ways to engage with millions of individuals around the world. However, obtaining content for social media can tread into murky copyright waters. This issue is illustrated by a recent dispute between Toronto photographer Jake Kivanç and Drake, where Kivanç has accused Drake of playing dirty not clean.
As detailed in a post on Vice by Kivanç, the photographer attended a charity event at Ryerson University. There was a surprise performance by Drake, and, as expected in Toronto, there was some fanfare shortly after the event. After Drake’s performance, Kivanç uploaded six photographs to his personal Instagram account. Later that evening, Drake’s Instagram account posted one Kivanç photo, without tagging or crediting Kivanç, and replaced Kivanç’s text caption with different text.
The posting by Drake likely is infringement contrary to section 27(1) of the Copyright Act, since the use of Kivanç’s photograph on Drake’s Instagram infringes the photographer’s exclusive rights under section 3 of the Act. Moreover, Kivanç has a strong argument that there has been an infringement of his moral rights. Pursuant to section 14.1, Kivanç has the right to be associated as the author in connection with any reproduction or communication to the public of his photograph. It appears that Drake did not associate Kivanç as the author, and there is nothing to indicate that it would have been unreasonable for Drake to do so in the circumstances.
In the unlikely event of litigation over Drake’s posting, one anticipates Drake would rely on the Act’s exceptions to copyright infringement. However, as the facts are described by Kivanç in his post, it is unclear which exceptions might apply since Drake’s use of the photograph is unlikely to fall within any of the allowable fair dealing purposes and other exceptions found in the Act.
For example, as I have previously written, section 29.21 provides an exception for individuals (not corporations) to incorporate copyright-protected works in the creation of a new works, so long as the statutory requirements are met. Here, Drake has not created a new work (the original photograph was simply reproduced without alteration), nor has he provided the source of the existing work.
If Drake had created a new work (such as this quick one I prepared) and credited Kivanç, the next query would be whether the use of the new work on Drake’s Instagram account was done “solely for non-commercial purposes.” Arguably, Drake would not maintain his Instagram (and perhaps pay others to do so as well) unless there was a commercial purpose and benefit for doing so.
In general, it is unclear whether celebrity social media accounts would be considered “non-commercial” for the purposes of the Act‘s non-commercial user-generated content exception. Similar issues would arise in any situation where a “personal” account is used for mixed business and person uses. Absent any clarity in the jurisprudence as to how “non-commercial” will be interpreted and applied, parties are left to wonder as to whether the use of a new work is done “solely for non-commercial purposes.”
For now, Kivanç will himself wonder if he will be looking for revenge all summer sixteen. As for Drake, he might be saying “Oh man, oh man, not again.”