Executive Summary: Key Legal and Evidentiary Issues

• Scope and interpretation of the copyright licence granted by Archimed Studio inc. to Cons properties 12 inc. for the commercial use of real estate photographs.
• Legality of 9411-0715 Québec inc.’s use of eleven photographs in online rental listings without a direct authorization from the copyright holder.
• Effect of the sale of the immovables from Cons to Capreit apartments inc. on the transfer (or non-transfer) of copyright or usage rights in the photographs.
• Assessment of 9411-0715 Québec inc.’s good or bad faith, including its reliance on Capreit’s representations about having usage rights.
• Application of statutory damages under section 38.1 of the Loi sur le droit d’auteur for commercial copyright infringement, including the per-photograph quantum.
• Weight given to prior similar cases involving Archimed when calibrating a proportionate and deterrent statutory damages award in small claims.

Facts and background of the dispute

Archimed Studio inc. is a business that specializes in photography and videography of buildings and real estate. It was retained in 2021 by Cons properties 12 inc. (Cons), then owner of several immovables, to photograph those buildings for marketing and advertising purposes. A number of professional photographs were produced in the course of that mandate.
When Archimed invoiced Cons for the work, the invoice contained detailed licensing terms governing the use of the images. Those terms expressly granted Cons, as client, the right to use the images “to market and advertise their brand and products in any digital medium in perpetuity,” but excluded print use. The licence was specified as non-exclusive to the client, with Archimed retaining the copyright in the images. The terms also clearly prohibited the client from licensing or distributing the images to any third parties and required a clickable credit to the photographer when posting on social media.
In March 2022, Cons sold the relevant immovables to Capreit apartments inc. (Capreit). Around the time of this transaction, Capreit contacted Archimed to acquire the right to use nine specific photographs taken in the previous mandate for Cons. Importantly, the nine photos that Capreit licensed from Archimed were not the same photographs that later became the subject of the present litigation. The photographs in dispute—eleven in total—were never part of those discussions and were not licensed to Capreit.

Subsequent relationships and use of the photographs

After purchasing the buildings, Capreit retained 9411-0715 Québec inc. (9411) to handle the rental of the newly acquired properties. In discharging this mandate, 9411 used eleven photographs that Archimed had originally taken for Cons. These photos were posted by 9411 on various online rental platforms to advertise the units for lease.
Archimed eventually discovered that its photographs were being used in several online rental listings. It considered this use to be unauthorized and contrary to the licensing terms it had agreed upon with Cons. Archimed then emailed 9411 in December 2022, identifying itself as the photographer for Cons, explaining that Capreit had only licensed a limited number of images, and stating that 9411 was using at least eleven of its photos on several websites without authorization. In that email, Archimed offered two financial options: a licence for unlimited use of the eleven images at CAD 400 per photo, or a past-use fee of CAD 250 per photo if 9411 preferred to cease using them. Archimed also referred to the Canadian Copyright Act (L.R.C. 1985, c. C-42), noting that pre-established statutory damages per photo could range from CAD 500 to CAD 20,000 for illegal commercial uses.
After this first communication, Archimed followed up on 10 May 2023 and then sent a formal demand letter on 29 May 2023, allowing a short period for payment. In response, on 31 May 2023, a representative of 9411 indicated that the photographs would be removed but refused to pay any amount, maintaining that 9411 had been properly authorized to use them by Capreit.

Positions of the parties on copyright and authorization

Archimed’s position was anchored in copyright law. It argued that, as the creator of the photographs, it remained the copyright owner and held the exclusive rights to reproduce, communicate, or authorize the use of its works. The licence given to Cons had been limited: Cons could use the images digitally to promote its own brand and products, but it could not assign, sublicense, or otherwise distribute those images to third parties. When Cons sold the buildings to Capreit, it did not and could not, under those terms, transfer the copyright or broader usage rights in the images. Thus, in Archimed’s view, neither Capreit nor 9411 had any valid licence to use the eleven photographs in dispute.
In court, 9411 contested the claim. It argued that it had been authorized by Capreit to use the photos for renting the properties and that Capreit itself had obtained the right to use the photographs from Cons when it acquired the buildings. 9411 further suggested that even if there was no explicit transfer, there had been an implicit transfer of rights to Capreit at the time the properties were purchased, such that Capreit could authorize 9411 to use the images.

Legal framework on copyright and statutory damages

The court began by reviewing the applicable provisions of the Loi sur le droit d’auteur (Copyright Act). Photographs are classified as artistic works, and the author of an artistic work is the first holder of the copyright. As such, the author has the exclusive right to reproduce all or a substantial part of the work and to communicate it to the public, as well as the exclusive right to authorize those acts. Any act reserved to the copyright owner that is carried out without consent constitutes copyright infringement under section 27(1) of the Act.
Where copyright has been infringed for commercial purposes, the Act permits the rights holder to elect statutory damages instead of proving actual loss. For commercial infringements, statutory damages must be fixed between CAD 500 and CAD 20,000 per work, in an amount that the court considers equitable. To guide this discretion, section 38.1 requires the court to consider several factors, notably: the defendant’s good or bad faith; the conduct of the parties before and during the litigation; the need for a deterrent effect against future infringements; and, in commercial contexts, the proportionality of the damages to the infringement, taking into account the hardship for the defendant, whether the infringement was for private or non-private purposes, and its impact on the plaintiff.

Court’s analysis of the licence and transfer arguments

Applying these principles, the court concluded that 9411 had infringed Archimed’s copyright in the eleven photographs. The chain of authorization advanced by 9411 failed at several points. First, the original licence between Archimed and Cons was restricted and expressly barred Cons from licensing or distributing the images to any third parties. This meant that Cons could not lawfully grant any rights over the photographs to either Capreit or 9411 without Archimed’s consent.
Second, Capreit’s own conduct undermined the suggestion that it believed it had acquired full rights over the photos when it bought the buildings. Shortly after the property acquisition, Capreit approached Archimed and paid for a new licence for nine photographs taken for Cons, implicitly acknowledging that it did not have inherent rights in those images by virtue of the sale of the immovables. Those nine photographs did not include the eleven images at the heart of this dispute, which remained unlicensed.
The court emphasized that Capreit did not appear at the hearing. In its absence, the judge accepted Archimed’s version of its discussions with Capreit and inferred that Capreit was aware that it did not own the copyright or a general transferable licence in the photographs. On that basis, the court found that Capreit could not have authorized 9411’s use of the images, whether directly or through any implied transfer.
The defendant invoked jurisprudence dealing with exceptional cases of implicit licence transfers, particularly relating to architectural plans and software. The court distinguished those cases from the present facts. Here, the explicit licensing language, the subsequent separate licence negotiations between Capreit and Archimed, and Capreit’s own behaviour strongly indicated that no implied transfer of copyright or sublicensing rights had occurred in connection with the sale of the buildings.

Assessment of good faith and calibration of statutory damages

Although the court found that 9411 had infringed Archimed’s copyright, it accepted that 9411’s representative credibly believed that Capreit possessed the necessary usage rights and had validly authorized 9411 to use the photographs. The court also considered that 9411 appeared to have been initially misled by Capreit about the scope of its rights. This misunderstanding partly explained why 9411 continued to use the photographs until it received a formal demand, rather than acting immediately after the first informal communication from Archimed.
Taking all of this into account, the court held that 9411 had not acted in bad faith. There was no evidence of repeated or persistent infringement that would justify a particularly heavy sanction. The judge noted that this context differed from other similar cases involving Archimed, where courts had awarded between CAD 625 and CAD 2,000 per photograph in statutory damages. In light of the mitigating factors in this file, the court opted for a lower figure while still recognizing the need to uphold copyright protections and maintain some deterrent effect.

Outcome and financial consequences

Ultimately, the court partially granted Archimed’s claim. While Archimed had sought CAD 1,000 per photograph (for a total of CAD 11,000) in statutory damages, the judge concluded that a lower, but still meaningful, award was appropriate. The court fixed statutory damages at CAD 500 per photograph, resulting in a total of CAD 5,500 for the eleven infringing images. In addition, 9411 was ordered to pay Archimed legal interest at the statutory rate and the additional indemnity under article 1619 of the Civil Code of Québec, running from 4 June 2023, as well as CAD 364 in court costs.
In summary, the successful party is Archimed Studio inc., which obtained judgment for statutory copyright damages of CAD 5,500 plus CAD 364 in costs, for a fixed total of CAD 5,864, together with legal interest and the additional indemnity from 4 June 2023, the latter interest-related amounts not being precisely quantifiable from the judgment alone.