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Marketing & Communications

Dramatis Personae in legal decisions

Now that the Master’s is done (surreal!) and I’ve had a few months of watching dumb horror movies, reading comics and playing various flavours of Magic: The Gathering online, I’m starting to poke at self-directed legal research again.

I’m starting with picking up my rejected original premise for my Master’s — puffery is fascinating, by God, and I will not be deterred from poking at it with a big dumb stick even if no serious legal academic on the planet thinks it’s worth doing.

But — as somebody who is eminently easily distracted — I almost immediately got detoured into interesting turns of phrases in some of the cases I was reading in CanLII where puffery is mentioned.

One of these,

Alcamo v. Walt, 2022 ONSC 1913 (CanLII)1https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html is a riveting read in and of itself. But I was immediately struck by the use of the phrase Dramatis Personae, which I’d never seen in a legal decision before, to establish the various parties in the case. A quick search of CanLII later, and there are only 49 decisions in the database (which only reaches back to the early 2000s, but still, it’s 18+ years and 3,000,000+ decisions) that use that specific string.

What are they, and who are they by? There’s only a trickle before 2008, and then they start occurring more frequently…

2008

Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC)2https://www.canlii.org/en/on/onsc/doc/2008/2008canlii17304/2008canlii17304.html
Perell J

2010

Alberta (Child, Youth and Family Enhancement Act, Director) v. Z.G., 2010 ABPC 7 (CanLII)3https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc7/2010abpc7.html
A.H. Lefever

Steinhoff (Re), 2010 IIROC 8 (CanLII)4https://www.canlii.org/en/ca/caiiroc/doc/2010/2010iiroc8/2010iiroc8.html
Getz, Lay, Treatro

Galustian v. Skylink Group of Companies Inc., 2010 ONCA 645 (CanLII)5https://www.canlii.org/en/on/onca/doc/2010/2010onca645/2010onca645.html
Watt JA

2011

R. v. Bayani, 2011 ONSC 5225 (CanLII)6https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5225/2011onsc5225.html
R. Clark J

2012

T.F. (Re), 2012 ABPC 5 (CanLII)7https://www.canlii.org/en/ab/abpc/doc/2012/2012abpc5/2012abpc5.html
Steven E. Lipton

McSherry v. Zimmer GMBH, 2012 ONSC 4113 (CanLII)8https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4113/2012onsc4113.html
Perell J

Arora v. Whirlpool Canada LP, 2012 ONSC 4642 (CanLII)9https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4642/2012onsc4642.html
Perell J

2013

Sekhon v. Aerocar Limousine Services Co-Operative Ltd., 2013 ONSC 542 (CanLII)10https://www.canlii.org/en/on/onsc/doc/2013/2013onsc542/2013onsc542.html
Perell J

D.J. (Re), 2013 ABPC 99 (CanLII)11https://www.canlii.org/en/ab/abpc/doc/2013/2013abpc99/2013abpc99.html
Steven E. Lipton

2014

R v Fast, 2014 SKQB 84 (CanLII)12https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb84/2014skqb84.html
Danyliuk J
“This case is about unscrupulous business practices, criminal schemes to make money, greed, and human nature.” — hot dang I like it when the justices get a little Grishamy in their headnotes.

Fontaine v. Canada (Attorney General), 2014 ONSC 4585 (CanLII)13https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4585/2014onsc4585.html
Perell J

2015

R v. Beauchamp, 2015 ONCA 260 (CanLII)14https://www.canlii.org/en/on/onca/doc/2015/2015onca260/2015onca260.html
Cronk, Blair and Watt JJ.A.

2016

Pev International Research & Development Incorporated (Re), 2016 NSUARB 88 (CanLII)15https://www.canlii.org/en/ns/nsuarb/doc/2016/2016nsuarb88/2016nsuarb88.html
Roberta J. Clarke, Q.C., Member

Kowalyshyn v Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819 (CanLII)16https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3819/2016onsc3819.html
Perell J

Dhudwal v. Canada (Citizenship and Immigration), 2016 FC 1124 (CanLII)17https://www.canlii.org/en/ca/fct/doc/2016/2016fc1124/2016fc1124.html
Mr. Justice Harrington

2017

907687 Ontario Inc. (International Institute of Travel) v. 1472359 Ontario Ltd (IBT College of Business Travel & Tourism Technology), 2017 FC 969 (CanLII)18https://www.canlii.org/en/ca/fct/doc/2017/2017fc969/2017fc969.html
Fothergill J

2018

4075447 Canada Inc v Pacrim Developments Inc, 2018 ABQB 358 (CanLII)19https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb358/2018abqb358.html
Robertson AR QC

Hallman Construction Ltd. v Cambridge (City), 2018 CanLII 70303 (ON LPAT) [Local Planning Appeal Tribunal]20https://www.canlii.org/en/on/onlpat/doc/2018/2018canlii70303/2018canlii70303.html
Swinkin, Douglas – Tribunal members

2019

Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc, 2019 ONSC 1507 (CanLII)21https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1507/2019onsc1507.html
Perell J

Signature Realty Inc. o/a Royal Lepage Signature Realty v. Fallico, 2020 ONSC 1117 (CanLII)22https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1117/2020onsc1117.html
Perell J

Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297 (CanLII)23https://www.canlii.org/en/on/oncj/doc/2020/2020oncj297/2020oncj297.html
Kukurin J

2021

Peters v. SNC-Lavalin Group Inc., 2021 ONSC 5021 (CanLII)24https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5021/2021onsc5021.html
Perell J

Barkley v. Tier 1 Capital Management Inc., 2022 ONSC 175 (CanLII)25https://www.canlii.org/en/on/onsc/doc/2022/2022onsc175/2022onsc175.html
Perell J

2022

Fehr v. Gribilas, 2022 ONSC 275 (CanLII)26https://www.canlii.org/en/on/onsc/doc/2022/2022onsc275/2022onsc275.html
Perell J

Riha v. A. Wilford Professional Corporation, 2022 ONSC 1110 (CanLII)27https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1110/2022onsc1110.html
Perell J

Alcamo v. Walt, 2022 ONSC 1913 (CanLII)28https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
Perell J

Park Lawn Corp. v. Kahu Capital Partners Ltd., 2022 ONSC 3341 (CanLII)29https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3341/2022onsc3341.html
Perell J

Raponi v. Olympia Trust Company, 2022 ONSC 4481 (CanLII)30https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4481/2022onsc4481.html
Perell J


The attentive reader will notice a trend — Perell J, whose Alcamo decision got me on this groove in the first place, holds the strong plurality for the use of the phrase. It also seems to come up in Alberta more than anywhere else after Ontario (on review, it looks like almost all ON, several AB and a single SK use).

On Perell J’s frequent use, it occurred to me that I’m not a lawyer and will not be one; I’ll never appear before Justice Perell in court as a lawyer (and hopefully not in other contexts). I’m not a full-time legal academic. I’m just a curious person with a lot of intersecting interests in law. So I don’t really have to worry about my reputation or what he thinks of me.

So I emailed him to ask why this turn of phrase? Because I find it accessible, engaging, and even narratively strong. But it also feels a bit flip, and even cynical, to position the people on both sides of a legal dispute as “actors”. It’s a curious phrase, and it made me curious.

If he writes back, and is inclined to give me permission to share his thoughts on the use of the phrase, I’ll update here. If not, so it goes — a passing observation.

  • 1
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
  • 2
    https://www.canlii.org/en/on/onsc/doc/2008/2008canlii17304/2008canlii17304.html
  • 3
    https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc7/2010abpc7.html
  • 4
    https://www.canlii.org/en/ca/caiiroc/doc/2010/2010iiroc8/2010iiroc8.html
  • 5
    https://www.canlii.org/en/on/onca/doc/2010/2010onca645/2010onca645.html
  • 6
    https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5225/2011onsc5225.html
  • 7
    https://www.canlii.org/en/ab/abpc/doc/2012/2012abpc5/2012abpc5.html
  • 8
    https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4113/2012onsc4113.html
  • 9
    https://www.canlii.org/en/on/onsc/doc/2012/2012onsc4642/2012onsc4642.html
  • 10
    https://www.canlii.org/en/on/onsc/doc/2013/2013onsc542/2013onsc542.html
  • 11
    https://www.canlii.org/en/ab/abpc/doc/2013/2013abpc99/2013abpc99.html
  • 12
    https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb84/2014skqb84.html
  • 13
    https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4585/2014onsc4585.html
  • 14
    https://www.canlii.org/en/on/onca/doc/2015/2015onca260/2015onca260.html
  • 15
    https://www.canlii.org/en/ns/nsuarb/doc/2016/2016nsuarb88/2016nsuarb88.html
  • 16
    https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3819/2016onsc3819.html
  • 17
    https://www.canlii.org/en/ca/fct/doc/2016/2016fc1124/2016fc1124.html
  • 18
    https://www.canlii.org/en/ca/fct/doc/2017/2017fc969/2017fc969.html
  • 19
    https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb358/2018abqb358.html
  • 20
    https://www.canlii.org/en/on/onlpat/doc/2018/2018canlii70303/2018canlii70303.html
  • 21
    https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1507/2019onsc1507.html
  • 22
    https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1117/2020onsc1117.html
  • 23
    https://www.canlii.org/en/on/oncj/doc/2020/2020oncj297/2020oncj297.html
  • 24
    https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5021/2021onsc5021.html
  • 25
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc175/2022onsc175.html
  • 26
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc275/2022onsc275.html
  • 27
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1110/2022onsc1110.html
  • 28
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html
  • 29
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3341/2022onsc3341.html
  • 30
    https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4481/2022onsc4481.html
Categories
Marketing & Communications

The most savage takedown in ag fair history

I’m mainly just posting this so I can share this image in a discussion about agricultural fair dominance over at MetaFilter.

What’s going on here? It seems that there was one entrant in the Peanut Butter Cookie category, and the panel of judges awarded it second place.

Let that sink in for a second. What it means.

It means that — in the opinion of the Kingston fair judges — the absence of a cookie is a superior option to this cookie. That if somebody presented this cookie to them and said “do you want this cookie?” the answer would not be a polite “no thank you”, but a dead-eyed glare and “I abjure this cookie” delivered in a monotone.

They could have just given the only entrant first prize. By default. If there’s a single racer in the race, they win the race. If there’s one apple in the bowl, it’s the best apple in the bowl. This is how these things generally go.

But this was a deep ontological choice to award nothingness a higher status than this cookie. The judges, in their wisdom, effectively told poor Yvonne Brownlee that she had created the anti-cookie, a cookie that inverts the very idea of cookiehood.

This feels harsh. Maybe the judges were having a bad day.

But I think of this cookie more often than I expected when I first saw it. A reminder that the only option can still be rejected, that just because there’s only one path ahead of you there’s still another option: reject the premise.

So — whatever the merits or flaws of this peanut butter cookie — I respect and appreciate that you went in there swingin’, Yvonne. Thank you, and thank your cookie.

Categories
Marketing & Communications

A note on puffery

Not much time for blogging these days as I struggle to edit my LLM thesis (I’ve discovered through the process of pursuing the Master’s in Law that a 25-year career in journalism and marketing gives one a rich sense of strategy, narrative and storytelling purpose, but is in some ways antithetical to writing for legal academia).

I do still hang out on MetaFilter quite a bit, though, and since somebody brought up the famous Pepsi Harrier case on there the other day, wrote up a quick bit on puffery, partly in response to an earlier “all advertisers are liars amirite?” comment.

It’s not comprehensive, but it has potato chips in it:

Hey, puffery!

I got into my LLM (Master’s in Law) program wanting to use puffery as my general topic for exploration, but my thesis supervisor felt it was “settled” law in the sense that it just kind of… works, generally, and there isn’t an urgent problem to be addressed.

As advil says above, it’s not “advertisers get to lie because people know advertisers lie”, the general principle is oriented more around the idea of reasonable personhood*, and the idea that you can state something so outrageous that a reasonable person would not believe it.

This is why there are no court cases where people are suing Skittles because they bought and opened a bag of Skittles and a unicorn did not run into the room and touch their couch with its horn and turn it into Skittles like in the ad. It’s why a pizza joint on the radio can say they have the best slice in town without having to present 40 pages of quantitative data first defining “best” in the context of pizza and then what exactly makes their pizza “the best.”

But there’s a thin edge to puffery; recent examples include an attempted class action suit because Hawaiian potato chips are not made in Hawaii, or an attempted class action suit that TGI Fridays potato skin chips are not made from potato skins but seasoned like the restaurant’s potato skin dish.

(I swear puffery is not all potato chip law, I just found the Hawaiian thing while struggling to recall the TGIF thing).

Like howfar says, its roots are in contract law (like the Pepsi example above, or pretty much any time an end consumer brings suit) but legal issues over puffery often cross over into competition law or advertising regulatory bodies where companies will go after each other because they feel another company’s puffery is edging over into falsehood instead of easily recognizable exaggeration.

I regret not being allowed to pursue it as an LLM topic, but (as I have learned, slowly and with great pain) good legal writing tends to be more about an imminent problem in law that requires an urgent solution and some ideas on how to address it, and not just pointing at weird stuff and going “hey, that sure is weird.” Puffery is weird! But it’s not a problem that the courts traditionally have a problem dealing with; it comes down to some judgment calls among the judiciary and sometimes judges get things wrong, but on the whole it’s a pretty understood area that’s relatively easy to navigate.

*but “reasonable personhood” is an amazing topic for exploration, because immense amounts of law rely on this vague cultural idea of “the man on the Clapham bus”, and it’s only in the last couple of decades that people have started to really look at that and go “wow, that’s a super colonial, neurotypical, able-bodied framing that kind of sucks.” If you want a great read on the subject, Rethinking the Reasonable Person is a dynamite monograph by Mayo Moran that meticulously unpacks so much that is horribly wrong with how reasonable personhood is constructed.

Categories
Marketing & Communications

Robot Rock: software-generated works and copyright

I wrote this blog post to answer a colleague’s question about copyright for the music for the Microsoft Photos app.

He followed up to ask:

What if the music was created by a machine? The specifics of the track changes based on the time you set for the audio. So the music you end up using is compiled by the machine and not a person. Does that make a difference?

Once again, I am not a lawyer and this is not legal advice.

Software is copyright protected (the code is considered ‘writing’ in the same way that a novel is writing (you can’t copyright a process, but you can copyright how you describe it, which is kind of what code is considered)). So there are two possibilities here:

  • The software is creating the music from scratch: it’s programmed with an understanding of scales, chords and instruments. In this case, copyright in what it produces might be the copyright of the software author (see further down); or
  • The software is a lot simpler and is merely truncating or time-shifting music “stems,” which were written by a human, and all the software is doing is looping/speeding up/slowing down (chopping and screwing, as the kids say). In which case I think the copyright would reside with the music author. 

I suspect Photos is the latter, and copyright in this instance is with whoever wrote the tunes that Photos is using, regardless of how Photos is messing with the music when you’re playing with it.

Making things worse, music copyright also breaks down into author, performer, and performance copyright elements; I’m really talking about the authorship question here, but performance rights would also depend on whether this ia a modified piece of existing performed music (it’s chopping and screwing an MP3) or if the music is generated by the software. Music copyright is just the worst.

Pertinent to Ingenuity Labs, though: there’s no AI/art jurisprudence in Canada, but literally a few weeks ago the U.S. Copyright Review Board refused to grant copyright to a “true” AI-generated piece of visual art: Paradise Lost: Art Created by AI Is Ineligible for Copyright Protection | McDermott Will & Emery – JDSupra. The US is not Canada, but it’s a common law jurisdiction like Canada and a very influential one, so barring any radical departures elsewhere in the Commonwealth it would likely be what courts here would hew to.

This is where I don’t know as much as I could — I don’t know what distinguishes an “AI” from “normal” software. The decision here is based on there being no human involved in the actual creation; humans being assisted by AI in the creation of works would still hold copyright in those works.

So even in the first example above (a piece of software generating something), I don’t know at what point it’s an “AI”, or when it’s “just software” and the software author would hold copyright.

I also don’t know where the threshold of “AI” and “human assisted” is: depending on the thought and complexity you have to put into the AI for it to generate something, you might cross a legal barrier where on one side you’re a human that’s putting enough creative complexity into the system that you’re still the author; on the other side it’s just the AI at work.

Per the US decision above, a human has to be at the origin of the work for there to be copyright in it: the AI can’t be an author (nor can an AI perform ‘work for hire’ (which is again not a thing in Canada, exactly) since it is not capable of meaningfully entering a contract).

While this is all fun to unpack, ultimately the prior thing holds — if there’s no specific term-of-service language granting you a non-exclusive license to use the asset, it’s just not safe to use.

Categories
Marketing & Communications

Microsoft Photos, Music, and Copyright

A colleague asked me for my opinion on the use of music provided within the Microsoft Photos app (bundled with Windows 10/11) the other day, and what I thought was a simple question turned kind of complicated.

Let’s start off by saying I’m not a lawyer and this is not legal advice. And my knowledge of copyright law is that of a punter who’s taken some classes, not somebody who actually works daily in the field and knows it inside and out. I know more than the average person, but I’m neither a copyright lawyer or an academic.

To the best of my knowledge, then:

Can you use the background music provided by Microsoft as part of the Windows-bundled Photos app in your public-facing productions?

The quick answer — the safe answer — is “no.”

As a general rule, if you cannot find language that specifically talks about non-exclusive licensing and allows you to use bundled assets in public-facing work, it’s not a good idea to do it.

There are no shortage of people on the Microsoft (and other) forums asking this exact question about the rights to music bundled with Windows default apps:

https://answers.microsoft.com/en-us/windows/forum/all/do-i-have-permission-to-use-the-music-included-in/c578ca2f-ffd5-4594-a3dc-d54edae5f796


https://answers.microsoft.com/en-us/windows/forum/all/is-the-music-in-microsoft-photos-app-royalty-free/827b2eb6-773c-40d2-b64f-80ee2d725137

From these threads, we can get down into the tremendously unhelpful copyright agreements that Microsoft provides to end users:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

This page covers copyright in general, but does not include any information on copyright (or use or licensing) of content that Microsoft provides through its software. If you’re looking for more pretty useless information about copyright and the use of MS products, they have you covered:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright/permissions


https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

As a point of contrast, here’s a quick example of a similar service that does have some language that seems to make it possible to use their assets.

YouTube makes their copyright conditions clear for the “YouTube Audio Library” — right in the banner image for the Library. It’s not great for accessibility, but the language is right there!

https://www.youtube.com/c/AudioLibraryEN/playlists

You can also find some copyright information at https://support.google.com/youtube/answer/3376882. As it says there,

“Music and sound effects from the YouTube Audio Library are copyright-safe. The Audio Library is found exclusively in YouTube Studio.”

“Copyright-safe” is not a term found in either Canadian or US copyright law, so it’s annoyingly vague to try to guess what it means, exactly. But at least it’s somewhat clear; they also include parameters in the description of each track, such as:

https://www.youtube.com/watch?v=Jx8ls-Y-Keg

“You’re free to use this song and monetize your video, but you must include the following in your video description:
Be sure to attribute the artist.
Music ⓒ – Audionautix”

This is similar to a lot of creative commons language, and is easy to understand and follow. There might be something in there a copyright lawyer could pick apart, but it’s solid footing.

Not so with Microsoft Photos. You’re at sea about whether or not you can use the music they put right there in your hands and encourage you to adopt for your projects.

On its face, this feels wrong… right?

If you’re being given the music with the software, and the software is supposed to let you create photo galleries and movies that you can share, it only stands to reason that you’re allowed to use that music.

While this is probably the case — it’s hard to imagine Microsoft going after people who do this, for PR reasons, if nothing else — that’s still not the law.

Essentially, somebody made that music, and somebody owns the copyright for the music.

It might be an individual, or it might be a company or a client they work for. The law is a bit different in Canada and the US about how “work for hire” functions.

But any way you slice it — somebody owns the copyright to the music, and unless there is something in writing that attributes to you the right to use the music… you don’t have the right to use the music. There is no such thing as an “implied” license. Some cursory poking around at sublicenses doesn’t show much in this space; this isn’t extensive research, and again, there may be experts who know more about this than I do at present, but there’s certainly no obvious and accessible jurisprudence granting exemptions for copyright infringement because a piece of software made it easy or convenient to infringe.

And underneath the surface, there’s not a lot of transparency about where the music in the Photos app comes from. Maybe somebody at Microsoft composed and recorded and produced it, and Microsoft owns it all, lock stock and barrel.

But maybe somebody has licensed it to Microsoft, and that license might change or expire, which means the sublicense (which, I want to be clear, DOES NOT EXIST, we’re just playing around here) that Microsoft grants to the Photos app user would then also expire.

TLDR: if you can’t find up-front and easy-to-understand language in an app or software’s terms of use that explicitly tells you how you can and can’t use assets that come with the app — best not to use them. The chance of a negative outcome might be low, but you’re sailing in uncharted waters.

Categories
Marketing & Communications

Beware the plug-in!

A quick note about something, er, noteworthy: those in the public sector should be aware of a recent IPC decision regarding the Halton School Board and its use of browser plugins without adequate vetting and consent.

Higher ed is more my jam than primary or high school, and minors factor less prominently in that space, but still worth observing that the Information and Privacy Commissioner has called Halton School Board on the carpet for the use of browser plugins for educational purposes.

Colleges and universities normally have fairly strong authorization-to-operate processes, and most major software and SAAS is vetted and reviewed by both IT teams and counsel to be sure it’s up to snuff. But this exposes an interesting area of vulnerability that we don’t often think of; institutions may be recommending or even mandating bolt-ons to services that have not been evaluated and collect information in ways that contravene MFIPPA, FIPPA or your privacy legislation of choice.

As I type this, I’m eyeing Zotero and the Zotero browser extension icon in front of me with some suspicion. I’m sure it’s kosher, but as a tool strongly recommended (but not mandated!) for my graduate studies, how has it been vetted? What information is it collecting? And if the rubber hits the road, what’s my institution’s responsibility in encouraging me to adopt it?

Whether minors being watched out for by their guardians or adults looking out for their own interests, there’s an interesting wedge of privacy concerns here that I suspect are underbaked when we look at building cutting-edge pedagogical processes for students.

Categories
Higher Ed Law Marketing & Communications Photography Privacy

The Bay and Appropriation of (Black) Personality for the “Charter for Change”

So The Bay fisked up.

As seen on Twitter, and then reported on, they used a photo of a Black person without their consent as part of a campaign for their “Charter for Change” marketing program. Not great — and compounding the mistake, it was a photo of Hadiya Roderique, a well known Black lawyer (not currently practising, but a JD is a powerful thing) and activist championing marginalized voices.

She called them out on Twitter, they replied, acknowledged the error, and removed the photo. Which seems to have satisfied Roderique, per the CBC article, although she’s hoping for the Bay to make a financial contribution to a Black or Indigenous organization (although that seems to more or less be the goal of the Charter for Change program in the first place).

What went wrong?

The cascade here is pretty much what I guessed when it broke. Extrapolating some probable steps, based on my own past in agency work for national/multinational clients: an agency grabbed photos online as part of a pitch, probably one among a batch of concepts they were presenting. Pitch was approved, and somebody went ahead with the pitch concept without doing the due diligence of talking to the original creative team to make sure the right permissions were in place.

And here we are. The Bay has apologized, the photos are taken down, more attention has been brought to the issues of using marginalized peoples’ work without credit or compensation.

But what would Roderique’s options have been had the Bay been obstinate about the whole thing? Or if she decided that the Bay’s takedown and apology wasn’t good enough, and wanted to see how far she could push the issue in the courts?

Never a bad time to mention: I am not a lawyer, and this is not legal advice.

Banjo/lyrics me, vocals Greenish, and video from Donghu Jung, Madison Inouye, Sora Shimazaki (Pexels) and Stefania Buzatu (Pixabay)

This is a situation where the PR and public shame levers were the best ones to pull — because however you choose to push this to the courts, it’s unlikely that there would have been financial penalties to The Bay that would affect it in a meaningful way.

The copyright angle:

First, there’s the question of using the photo as a creative work without permissions. As Roderique establishes in the Twitter thread, it seems like the copyright is held by another photographer, and not Roderique or the Globe and Mail (where the photo first appeared); likely it was taken by the photographer and licensed to the paper.

Assuming my read of Roderique’s presentation of the photo copyright in the Twitter thread is correct, Roderique herself has no claim here: while she’s the subject of the photo, the right in the artistic work resides with the creator (photographer).

If the copyright holder — assuming photographer, and not the Globe — pursued this, awards for this kind of violation have been historically fairly low; generally about what the photographer would normally charge to license a photo, or an industry-standard amount; figure around $5,000. 1See Chung v Brandy Melville, with the caveat that this is also a case from Quebec’s civil system, albeit one that draws on the federal Copyright Act Amounts that I wouldn’t want to pay for a candy bar, but not exactly bringing a department store chain to its knees.

Personality rights:

This is where Roderique herself could look at actions. Publicity / personality rights aren’t that well established in Canada. Where they have been taken to court in the past, it’s usually been in the context of a public figure, such as Bob Krouse or the estate of Glenn Gould, pursuing claims (and — worthy of mention — neither succeeded). Roderique herself is not an unknown person in Canada, but it would be tenuous to say that she has the kind of fame that would make The Bay’s use of her photo qualify as “passing off” — using her name/image as an implicit endorsement of their program based on general recognition of who she is.

BC, Manitoba, Newfoundland and Saskatchewan all have provincial acts that forbid the use of one’s likeness without permission in advertising, but that doesn’t exist in Ontario, and isn’t captured in federal legislation. Since Roderique is in Ontario, and (likely) The Bay is headquartered in Ontario, there probably isn’t much there.2It’s worth noting that at least at the small claims level, a court has recognized appropriation of personality and awarded a nominal amount — $100 — in Vanderveen v Waterbridge Media. So from a precedent perspective, it’s in the books, so to speak.

Success is less assured here. Working through a set of factors defined by Amy Conroy of the University of Ottawa in 20123Amy Conroy, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?”, Western Journal of Legal Studies, Vol. 1 Issue 1, there are a number of escape hatches for The Bay: Roderique’s relative lack of fame (while she’s well known in some circles, she’s not a public figure to the point that you can immediately profit from her notoriety and likeness), the fact that this is to support a charitable endeavour by The Bay and not direct profit for the company (there’s an argument that can be made here about the marketing/PR value of the campaign for the company’s bottom line, but the campaign is ostensibly about them giving money to charities to support marginalized peoples).

PIPEDA and the OPC:

This is pretty tenuous, but arguably — as Roderique is recognizable in the photo — it constitutes a ‘record’ per PIPEDA’s definitions. You could conceivably pursue a claim with the Office of the Privacy Commissioner about the unauthorized exposure of this record as a privacy violation per PIPEDA.

There, however, the chain of actions in a complaint filing literally makes “Give the organization a chance to address your concern” the second step in the process.4“File a complaint about a business,” Office of the Privacy Commissioner of Canada When this was brought to their attention The Bay apologized and struck the image both online and in stores, which historically has been seen as a satisfactory resolution for the OPC.

Public Relations vs. Public Relations

It doesn’t take a genius to work out what’s been happening in The Bay’s boardrooms: somebody at some point realized that having a company whose entire history stems from the Colonial exploitation of Indigenous trappers might be problematic. Whether you take a cynical or positive view of this whole “let’s re-invent this whole Charter business” in a direction that drives money to marginalized groups, it’s fundamentally all about addressing that Hudson-sized skeleton in The Bay’s closet.

So calling them out — loudly and publicly — on how they’re building this make-good campaign on the backs of underrepresented people, and exploiting their images to make up for a history of exploitation — a sound, savvy move.

PR damage is the worst damage in this scenario. Quietly pursuing them on legally protected grounds would not be fruitless — if you have time and energy, you’d be putting them in a position where they’d be sinking tens of thousands of dollars in executive time and legal costs to mount a defense that they might lose.

The odds of doing significant financial damage to The Bay are minimal, but drawing public attention to this as a major PR misstep has been a success. Whether you’re taking a sincere or cynical view of The Bay’s “charter re-invention” project, drawing attention to the irony here was an entirely appropriate thing to do.

Would they have reacted with the same speed if it were not a notable Black woman with a law degree and a significant Twitter following? There’s no A/B test for the universe, so again, it falls to whether you’re taking a sincere or cynical view of the campaign’s genesis, management, and intentions.

Categories
Consent Law LLM Marketing & Communications Photography Privacy Videography

Billy Prosser and the Four Torts of Secrecy

Quick quiz: who’s not a lawyer? Me! What’s not legal advice? This!

“Billy Prosser and the Four Torts of Secrecy.” Sounds like a YA wizard novel, right? Well, if we’re looking at the history of privacy law, Prosser was kind of a wizard. He took the raw material of the Warren/Brandeis “Right to Privacy” concept and hammered it into shapes that would be more easily and directly applied by law.

(and frankly, isn’t all law wizardry? The application of will and language to shape reality; creating changes in the world through the power of the mind. Also: a lot of robes.)

(and yes, they’re privacy torts, not “secrecy” torts, but the Harry Potter riff doesn’t work nearly as well that way, and this is how I choose to spend my Sunday mornings, so there.)

When Warren and Brandeis kicked off the right to privacy, they summed it all up by essentially saying their big idea would be more likely to live as torts — people suin’ people, for the layperson — than public law (like criminal law). In “The Right to Privacy,” they identify likely remedies as tort in all cases, and, rarely, injunction. They frame criminal law as desirable but unlikely without legislation.

So, following “The Right to Privacy,” the idea just kind of… hangs there, like an indecisive seagull, for decades. It pops up in all sorts of scattered cases, but not particularly cohesively.

Then, boom! 1960! Ben Hur! Green Eggs and Ham! The Flintstones! And William Prosser writes “Privacy” in the California Law Review.1William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 388-89 (1960)

This wasn’t Prosser’s first kick at the privacy law can.2For a very good overview of the WAB -> Prosser lineage of privacy and torts, and more on pre-’60 Prosser, Richards and Solove’s “Prosser’s Privacy Law: A Mixed Legacy” (California Law Review , December 2010, Vol. 98, No. 6 (December 2010), pp. 1887-1924) is terrific, both as an overview of the evolution of privacy and tort, and a criticism of Prosser’s work and legacy. Working paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693

It was an analysis of decades of tort privacy cases, culminating in Prosser drawing four broad categories of privacy-as-tort:

  1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

Let’s bear in mind for a second that this was originally U.S. writing, and while broadly adopted, was adopted chiefly in American courts. But Canadian courts have steadily been drawing on Prosser’s tort categories as well, with the fourth tort being recognized in 2019.3 Some coverage here: https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort

Taking it back to high ed marcomms, all four are squint-and-you-see-it applicable to photo and video capture and consent.

There’s a bit of awkwardness here in terms of how I’m writing, too. At the moment, I’m moving more or less sequentially through time; some of the tort wrong that Prosser identifies become clearer in terms of their application through future cases.

The most applicable of the four are the first and fourth, on their surface.

1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.

Jones v Tsige is the 300-pound gorilla intruding on seclusion in Canadian courts. Where does a 300-pound gorilla intrude on seclusion? Anywhere it wants. In a nutshell, Tsige abused her access at a bank to spy on the financial records of Jones — who worked at the same bank, and had been partnered with Tsige’s ex.4You can read the case at https://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html

The big quote is p. 71:

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

Sneaky peeks at people’s bank records are a bit of a leap, in the abstract, from “intrusion upon seclusion” in other areas, but the key point here is that Canadian courts recognize that seclusion is a thing, and you can intrude on it.

Let’s also bear in mind that my overall arc here is unpacking consent issues with a particular interest in “public” spaces (and this gets surprisingly fungible in higher ed settings). At first, it seems like “seclusion and solitude” and “public space” is antithetical… but stay tuned, it’s a more nuanced conversation than you think, and part of a larger philosophical and legal conversation about privacy and context that’s been raging for decades now, and will be covered in upcoming posts.

For now, let’s take it on faith that yes, even if somebody is in a public area, you can still intrude on their seclusion or solitude. And that photographs can be as intrusive as snooping in bank records. I know that might not be satisfying at the moment, but trust me, we’ll get there.

4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

The last — “appropriation for advantage” is the other clear issue. Again, this is something that seems kind of clear-cut at first. It’s easy to trace this as it pertains to for-profit businesses; if you snap a picture of me without me knowing, and suddenly it’s on billboards coast to coast advertising beer, that’s a no-brainer (and for “false light” as well — what if I’m a known speaker against alcohol? A youth pastor?).5A good overview of appropriation at the McCarthy blog, here: https://www.mccarthy.ca/en/insights/blogs/snipits/future-everyone-will-have-their-personality-misappropriated-15-minutes

In higher ed, though, we tend to self-identify as the “good guys,” and my feeling is there’s a fuzzy sense that we can get away with more because (a) non-profit, (b) education is good, and (c) kind of a wibbly crossover between the oft-mentioned, oft-discussed fair use (U.S.) fair dealing (Canada) exceptions to copyright kinda sorta making us think that everything a college or university does is fair-dealing-esque.

But… well, no. We might be “good guys,” but we’re not exempt from the same strictures that govern for-profit business when it comes to exploiting images for “advantage”. Note that word — it’s advantage, not gain. The assumption that we’re not making money from something doesn’t move us out of the ‘advantage’ zone. Higher ed is in this very weird space where we’re collegial but also competitive — universities are notionally supposed to all get along and work together, but at the end of the day we’re also out there pitching and brawling to attract the very best students, researchers, research funding, donors… “advantage” starts shading very differently when you think of the various competitive spaces we exist in.

Does this violate copyright? Trademark? Is it passing off? We’ll get to all of these questions in… it’s looking like 2023, based on my current pace of work.

Stepping into more explicit legislative language, in Canadian jurisdictions where violation of privacy is a statutory wrong, it still paints a much broader picture than “profit”. For instance, in B.C.:

[3](2) It is a tort, actionable without proof of damage, for a person to use the name or [likeness, still or moving] of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.6Hie ye to the B.C. Privacy Act – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96373_01 “sale of or other trading in, property or services…” I wouldn’t bet the farm on wriggle room here.

“Appropriation” here is a slippery legal construct because there’s a ton of overlap with prior torts — both misappropriation of personality, and “passing off,” which are also their own things. To my limited knowledge, there’s no precedent in Canada for the specific Prosser appropriation tort, as a privacy action, without that gloss into the other areas as well. But my knowledge is admittedly limited.

And — and this is important — to date, misappropriation of personality (the non-privacy-related tort) has generally been advanced by famous people, in pursuit of damages that would equate to royalties received had they granted permission for their likenesses to be used.

To date — to my knowledge — there hasn’t been a “normal citizen” misappropriation case before the courts that’s seen success. A recent case in point is Hategan v. Farber, 2021 ONSC 874 — Hategan, a former member (and self-declared “former female face”) of the Heritage Front7let us sit for a moment with the fact that the “former female face” of the Heritage Front was basically named “Hate again,” and marvel brought suit against Farber, a television host, for appropriation of personality for… essentially, talking about her, it looks like. The judge, in a claim for summary judgment:

Yes there is a tort of wrongful appropriation of personality. This tort is not made out. It is not ever a “close call”.8Get your law readin’ on at https://www.canlii.org/en/on/onsc/doc/2021/2021onsc874/2021onsc874.html, at 117. Incidentally, this is a great rubbernecking case if you’re into reading court decisions that don’t go at all the way the plaintiff thought they would.

So there’s clearly a commonly understood sense of what appropriation of personality entails, and to date it’s been a hard threshold to reach. But that doesn’t mean impossible, or impossible forever.

What about the other two?

2. Public disclosure of embarrassing private facts about the plaintiff.

“Public disclosure of embarrassing facts” is less easy to see in higher ed marcomms; first, there’s a strong internal inclination to capture and show positive things, so it’s hard to easily see a marcomms agenda that sets out to disclose anything that somebody might find untoward.

It’s not without precedent in Canada — as Liam O’Reilly details, there have been a few cases of legal reasoning that hinge on this aspect of tort.9I am grateful to Mr. O’Reilly — he’s literally done my homework for me here, including a dive into small claims court cases: https://liamoreilly.ca/2017/07/31/public-disclosure-of-embarrassing-private-facts/ A minimal award, but still a finding of this wrong, in Action Auto Leasing and Gallery Inc v Gray. The most significant — Jane Doe 46544 v ND.10Over here at https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html — really leaned strongly into the tort, but was later set aside, so its value as precedent is gone (although the legal reasoning remains).11https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4920/2016onsc4920.html — this is a point at which I confess that I’m still a limited scholar in terms of my reading-law ability — there seem to be a number of procedural issues here for the setting-aside, but no actual flaw in the judicial reasoning or application of the tort per se

3. Publicity which places the plaintiff in a false light in the public eye.

There was a bit of ballyhoo when this finally hit Canadian judicial decisions as the “last Prosser tort” to be recognized in the country.12A good summary at Can Tech Law – https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort

In Yenovkian v. Gulian 2019 ONSC 7279, a judge went above and beyond previously established tort awards in finding against a husband who had made wildly inaccurate public claims about a spouse in a custody case. This is one of the introductions of “cyberbullying” into Canadian law, and the judge actually pulls directly from the American Restatement of Torts:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.13Yenkovian decision at https://www.canlii.org/en/on/onsc/doc/2019/2019onsc7279/2019onsc7279.html, above quote at 170

So we’ve got the U.S. idea, and even the test, now in Canadian law as precedent.

It’s… challenging to see how this would affect my current point of focus, which is photo/video capture and consent. But it’s interesting that it’s on the books in a broader sense, and may be worthy of note in higher ed in general, considering the sheer volume of social media drama/noise that can be generated during things like, say, student council elections.

The other thing to note is that in a general sense, informed consent solves everything in terms of the above tort categories. Eh, almost everything. And this is where we get into the philosophical foundation versus the practical elements of consent management.

I kind of want to park that for now, because a lot of the case law stuff coming up starts overlapping with the philosophical stuff that’s also coming up. Suffice it to say that there’s a natural tension in consent formulation: the consent-seeker is best served by consent that is broad, general and all-encompassing. But the notion of informed consent is best served by consent that is specific and well-articulated.

This distinction becomes clear when you start thinking of the outcomes of these torts, particularly #3 and #4. Let’s stay mindful of the overall needs of the institution’s marketing and communications mechanisms. A photo taken of a student doing one thing at a particular place and point in time could potentially be re-used for a radically different purpose. I may actually write up an incident from my own career as a case study next week.

This could conceivably trigger various Prosser torts in various ways, unless consent is either amazingly broad at the moment of capture (and consent well tracked), or a lot of effort is put in to re-seek consent for new purposes as they arise.

“No, honey, I can’t help with the dishes, I am busy drawing a mid-20th-century lawyer as a wizard and individually drawing a lot of tiny stars and moons that must all be coloured for my blog.” — future quote raised at a divorce hearing

A final note on Prosser — he definitely moved privacy law from a kind of abstract notion in to something with more form and substance — as we can see above, his American formulation of privacy torts has now made its way completely into Canadian law. But that doesn’t mean Prosser was all that and a tube of Pringles. I’m grateful to Rchards/Solove’s “Prosser’s Privacy Law: A Mixed Legacy” as a great read that identifies some key gaps in Prosser’s proposed formulation, and some inadvertent damage it may have done in the long haul.14That link once again: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693

Next week, a quick case study of how the higher ed marcomms machine can run into trouble when it repurposes photos. After that, we’re going to take a look at some privacy law theory that develops after Prosser, and the growing legal theory that context might be super important (spoiler: it is!).

May 23, 2021

Soundtrack:

Georgia Anne Muldrow: VWETO III

Vegyn: Only Diamonds Cut Diamonds

Murcof: The Alias Sessions

Categories
Consent Higher Ed Law LLM Marketing & Communications Photography Privacy Videography

Warren & Brandeis: Photography in Privacy’s DNA

Hey! It probably goes without saying that I am not a lawyer and nothing in this blog is legal advice. But I’m saying it anyway!

The first thing we read in my privacy law class was “The Right to Privacy,” Samuel D. Warren and Louis D. Brandeis.1Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). First published in the Harvard Law Review in 1890, it’s generally accepted as the initial stake in the ground for privacy rights. While there’s a lot that follows in the intervening 130-plus years, it firmly establishes the right to be “let alone,” a phrase made famous again in 1955 by Greta Garbo (and repeated in 50% of law school papers on privacy).*

Here’s “The Right to Privacy”, if you want to read (or re-read) it.

When you read it, the inciting behaviour is clear: gossip, specifically “society columns” in the newspapers of the day. Look at how tightly this article is bound to photography. Taking the introduction of “to be let alone” in the article, photography kicks off the very next sentence (emphasis mine):

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life…

And we’re off to the races! Thanks to Warren and Brandeis, hereafter WAB, because it’s short and also because it’s a lot like WAP and that’s fun for me.

I’m making a big deal out of this because as a higher ed marketing & communications professional, photos are a very big deal. And this is (broadly speaking, there are antecedents2I highly recommend Solov’s “A Brief History of Information Privacy Law” — Solove is going to come up a lot in this series, I think, including next week when we look at Prosser. Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006).) — WAB even mention that it had “already found expression in the law of France”3WAB’s footnote mentions the Loi Relative a la Presse of 1868, which is very elusive to find, or find writings on; if you are or know a French historical legal scholar, maybe you’d have better luck than I tracking this down — the kick-off for the very notion of privacy rights, which are the legal construct that leads to photo/video consent as both a practical and philosophical necessity. We can’t talk about consent without talking about privacy… and we can’t talk about privacy without talking about WAB.

So here we are, discovering that photography is baked right into the history of privacy-as-a-right.

It’s no secret that “The Right to Privacy,” while far-reaching in scope, was inspired by Warren’s profound irritation with what we’d call paparazzi today, who crashed and wrote about a society wedding.4Prosser, W. (1960). Privacy. California Law Review, 48(3), 383-423. doi:10.2307/3478805 The word “paparazzi” was still 70 years from being coined — eponymous for a character in Fellini’s La Dolce Vita — but clearly photographer-as-pest was enough of a common social ill, even in 1890, to resonate.

Look at this jerk with the punchable face.

It’s fun, if pointless, to wonder whether the idea of a right to privacy would have arisen, and in what form, if photography hadn’t gone the way it had — or if people had left the family wedding alone, or if WAB had thicker skins. Things rolled out the way they did. It’s interesting, though, to look at subsequent developments in privacy law and note how correlated they are with identity and revelation: presentation, photography and video as the drivers of a lot of our notional understanding of privacy.

So what is privacy, as they frame it?

Privacy is a negative right

Right out of the gate: privacy isn’t a right to do something, it’s a right to not have things done to you. WAB: “It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”

It’s not copyright, libel or slander

WAB go to some pains to ensure that the right to privacy is distinct from existing rights. Copyright is identified as a branch of property law. They do, however, use the idea of privacy law to colour in areas around copyright law. Where copyright law would protect a literary or artistic work, it still doesn’t prohibit the sharing of details or facts about people’s lives. WAB sketch out scenarios of letters between husband and wife, or a catalogue of gems that would be ruinous to a jeweler if released. “If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another’s, the facts relating to his private life, which he has seen fit to keep private.”

Libel and slander are deemed to protect “the material, not the spiritual” (197) — protecting from damage and injury to reputation. The proposed right to privacy, unlike libel / slander / defamation, does not offer the truth as a defense, however.

It’s constrained by practical matters

The authors also set out some fences that mesh with fairly common-sense propositions: once something is published (by consent), it’s no longer private; matters “of public interest” aren’t private (so publishing the backroom dealings of a politician are fair game, for instance). Constrained “privileged” publication, such as in court, government committees, or other public bodies, don’t violate the right to privacy. Oral violations would likely be without redress, because the damage would be very limited.

No malice required

They also take pains to point out that an absence of malice is no defense — that personal ill-will is not a requirement of a violation of the right. This is a through line with tort law — ill intent generally isn’t necessary to be held responsible for intentional acts.

Setting the table for 130+ years of privacy evolution

Warren is the guy who looks like a turtle soup magnate on the left, Brandeis on the right looking like he’d be right at home presiding over an orphanage in a Dickens novel. It’s fun to imagine them popping their monocles over gossip columns — but this was a big idea; important work, that would leave gossip in the dust over the next century-plus and become a foundational concern for society today.

They also weren’t shy about tossing a little hyperbole in the mix:

If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but also against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.

Although privacy law now covers everything from financial data storage to how censuses work, my interests, as somebody who works in higher ed marketing and communications, are still in roughly the same ballpark as WAB. As somebody who is responsible for creating, and publishing, a lot of pictures and videos in a lot of different ways, how can I do that in a way that upholds the spirit of a right to privacy, while still operating effectively and efficiently?

It’s a compelling question, for me, and I’m going to keep diving into it for a while.

Sidebar: so who was Judge Cooley?

Because I get curious about things, I couldn’t help wondering who “Judge Cooley” is. He’s actually the cited author of the four-word “to be let alone” phrase that anchors this whole thing. It’s like if I wrote a long essay saying that somebody should, as the Fonz says, “sit on it”, and I become known as the genius who first established that somebody should sit on it. I should hope that future scholars would one day work to uncover this mysterious “Fonz” from who these words of wisdom came.**

Cooley (Thomas M.) seats the right “to be let alone” in a general treatise on torts from 1879; in Chapter II of A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract, “General Classification of Legal Rights,” he lists “Security in person” as one of the rights that a government is expected to recognize.

In that vein, and following “Right to Life,’“ “Personal Immunity” is the second right he lists; and here’s where we get to it (emphasis mine):

“The right to one’s person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed in this case the law goes still further and makes the attempted blow a criminal offense also…”5Cooley, Thomas M. A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract. Chicago: Callaghan and Company, 1879; pages 23, 29.

This is actually pretty interesting. Cooley is engaging in a pretty straightforward description of assault and battery. (Fun fact: in Canadian law, there is no “battery” in the Criminal Code — “assault causing bodily harm” carries the weight there. But “assault” and “battery” are still torts; as you can infer from the criminal distinction, “battery” is the physical harm portion, and “assault” is the menace. If I run up to you with an axe, screaming, and swing the axe but stop it an inch shy of your face — that’s still assault, even if no physical harm is done. It’s actually a pretty broad category of things (including throwing a cat!).6He doesn’t cite the case here, but if a lawyer is going to say that throwing a cat is assault, I’m not going to miss this opportunity to write about it. John Erikson, “What are the different types of assault charges in Canada?” at https://ericksonlaw.ca/different-types-assault-charges-canada/

So, in A Treatise on Torts, Judge Cooley is describing “a right of complete immunity: to be let alone” in the context of the legal wrong of assault.

WAB have picked up Cooley’s turn of phrase originally used to describe assault — inflicting credible menace on somebody — and turned it to the purposes of privacy.

This is not an accident — they even describe the evolution of assault from battery on the previous page. Judge Cooley and A Treatise on Torts would have been a seminal book by 1890. So it’s fair to say that WAB knew exactly what they were doing with the lift, knowing that their audience would also likely be familiar with Cooley: invading my privacy is a form of assault.

Also worthy of note — significant mainly in one of the exceptions — consent is also part of the DNA of this first stake in the ground. It comes up a few times in the document, particularly as one of the limitations of the proposed right. Interestingly, the paper’s longest footnote concerns consent via copyright, contract and photo reproductions, substantially quoting North J in Pollard v Photographic Co. on contracted use of negatives.

And — also worthy of note — is the fact that on their surface, WAB, through one lens, failed. If they were writing in the hope of stopping the dissemination of society gossip, a quick trip to a supermarket checkout counter — or any news website — will show that society gossip, evolved into celebrity gossip, is far from gone. The seeds of contemporary gossip-mongering are captured in their very own exception to the idea of a right to privacy: “The right to privacy does not prohibit any publication of matter which is of public or general interest.” This is a massive and swampy grey area, that we’ll get into with century-later court cases involving supermodels and princesses. Stay tuned! But if their goal was to shut down the gossip industry and ensure that the private lives of the rich and famous could not be touched by the grubby, ink-stained fingers of those filthy journos… this was far from an unqualified success.

So let’s keep the following in mind as we meander through the evolution of privacy as a notional right, with a particular interest in privacy in public

  • Photography is comingled with the genesis of a legal right to privacy
  • As is consent (but as a factor that waives privacy rights)
  • The authors lifted language used to describe assault to define this right to privacy

Next week: Prosser, and the next big hop forward in conceptualizing privacy… for good, and for ill.

*In one of pop culture’s more famous misquotes, she was frequently reported as saying “I want to be alone,” which she clarified in a 1955 interview as having actually said “I want to be let alone.” If you don’t grok the distinction, read on!

**It turns out that the Fonz didn’t actually say “sit on it” very often — it was more commonly said by Joanie and Mrs. Cunningham. Ayyyyyyy!

May 16, 2021

Soundtrack:

Phil Collins, No Jacket Required

Buddy Rich & Max Roach, Rich vs Roach

Sleater-Kinney, All Hands on the Bad One

  • 1
    Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
  • 2
    I highly recommend Solov’s “A Brief History of Information Privacy Law” — Solove is going to come up a lot in this series, I think, including next week when we look at Prosser. Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006).
  • 3
    WAB’s footnote mentions the Loi Relative a la Presse of 1868, which is very elusive to find, or find writings on; if you are or know a French historical legal scholar, maybe you’d have better luck than I tracking this down
  • 4
    Prosser, W. (1960). Privacy. California Law Review, 48(3), 383-423. doi:10.2307/3478805
  • 5
    Cooley, Thomas M. A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract. Chicago: Callaghan and Company, 1879; pages 23, 29.
  • 6
    He doesn’t cite the case here, but if a lawyer is going to say that throwing a cat is assault, I’m not going to miss this opportunity to write about it. John Erikson, “What are the different types of assault charges in Canada?” at https://ericksonlaw.ca/different-types-assault-charges-canada/
Categories
Marketing & Communications

All Marketers Should Make Comics

Especially the writers.

In a role where I’m part director and part do-er, I keep a very active hand in everything from composing Tweets to writing five-year plans. I came up through the business as a mutt, with everything from community radio to professional journalism to strategic marketing under my belt.

But among all the past experiences, I think comics writing has been the most valuable.

It was never my job, in the sense that it was paying me a full-time salary. At the best, I got pizza money; for the vast majority of my work, nothing but the joy of doing it. There was one time where a creator-owned series I did got optioned and was being pitched around for a prestige TV adaption, but that’s a story for another time.

I’m slowly picking up old comics project and adding them to the blog; it’s a bittersweet experience, to be honest. So many great ideas and passion that never quite made it over the hump to being well recognized or self-sustaining.

But the joy was in the doing, as my friend Adam reminded me recently.

It was also in the learning!

I legitimately believe that every creative person should try comics, for a while, at least once. Not just one page, and not just writing, but the whole process. I’ve been a writer for 99% of the comics I’ve done, but have tried my hand at full process at things like 24 hour comics jams. I was a very good artist when I was in the third grade, peaked in the fifth grade, and think I can now draw about as well as most fifth-graders. It doesn’t stop me from making comics, and it shouldn’t stop you either.

At the moment, though, let’s talk about marketing, writing, and writing for comics.

What does writing for comics teach you?

Economy of language

This is tops. Especially in some formats of comics. I’m in the process of moving a decade of a daily strip I did with my good friend and brilliant art madman James Duncan to the blog. It was a M-F four-panel comedy strip that was also a serial story, about a man who was bitten by a radioactive man and gained the proportionate abilities of a man. It was called Man-Man.

Here’s the thing about a four-panel daily strip: it has to be punchy. You have four panels a day to tell a story. Given panel size constraints, you really shouldn’t have more than two people on a panel, sometimes three. You shouldn’t have more than 10 words in a word balloon.

So — while it never paid in money — writing a long-form serial adventure, that unfolded in four panels a day, where there were never more than two people speaking at once, and only speaking in bursts of 10 words or less — it paid in experience.

I am a wordy SOB, and this was hard. Bleed-from-the-eyes hard. It was not, admittedly, super funny sometimes (that’s on me, not James). But expressing what needs to be expressed — and striving to end in a joke every day — taught me in immeasurable amount about compact writing.

Image/text meshes

Never tell what’s showing, is essentially the golden rule. If a character is pulling a gun, having them say “I’m pulling a gun!” is pointless. If the artist has invested the on-panel action in the gun-pulling, he’s freed you up to have that character say something else entirely. It can be prosaic and additive (“I’ve been waiting five years for this, Tompkins!”), or show disassociation (“Nice day for a picnic, isn’t it?”) or even lunacy (“The banana people live under the stairs!”).

Point being, getting a handle on how text should complement image, and not be redundant to it, is critically important. Text can even contradict an image, for some sort of jarring narrative effect, but it’s another form of economy that comics teaches you real fast.

The passage of time, and scenes

Scott McCloud, certified genius and comics-maker, talks about this a lot in his book Understanding Comics, which I’d argue should be in every creative’s library. The space between comic panels (“gutters”) contain fungible amounts of time and movement, and every unit of comic (panels) can leap through time at the speed the author desires. I’m mildly mangling the word “fungible” here because it’s kind of an exchangeable commodity, in that you can choose to have the gutter or larger panels, and the division depends on how you want the passage of time, or a split in locations, to be perceived in the narrative — going full comics nerd at this point, sorry.

It’s a low-cost, intensive way to really understand how time works in narratives, and a great way to cut your teeth for future video production. Will your next shot be the next moment in a sequence, or five years later? Will your next shot stay in the same place, or take you to a new location?

Narratives

I call everything I do “storytelling” in internal conversations, which I’m sure makes some of my colleagues think I’m a pretentious weirdo sometimes. But they are! Every social media post is a story. Every news item is a story. Every research profile is a story.

Comics make you tell stories while thinking on that image/text mesh plane. Above and beyond that mesh, you’re also thinking of beginnings, middles, and ends. This isn’t exclusive to comics, but it separates the good’uns from the bad’uns: what’s your act structure? What are your impact points? What do you need a full-page splash for, versus a tiny inset panel?

Tell a story in 24 pages of nine-panel grids. Then tell a story in a single page with 12 small boxes of art and words. Then tell a story in a four-panel comic strip. Then in one big image/text combo.

Once you can get ideas down in a single panel that have a beginning, middle and end, and marry compelling art with prosaic text, you’re ready to write a tweet. Or film a killer Tik-Tok minute. Or even write a 3,000-word feature, but mindful of what pictures you’ll need at the other end to make it sing.

Infinite budget

The project that broke me was a crazily ambitious series called Rise, Kraken! that at one point had a group of agents for an international crime organization called Kraken trapped in a facility with killer panda bears that spoke through Speak-n’-Spells grafted to their chests, being pursued by an army of hundreds of howler monkeys. At another point, zeppelins were being taken out by weaponized War Tubas. I haven’t put it up on the site yet because I need to find the art (and ask the artist for permission to post it). I wrote an adaptation of Captain Blood, the classic novel of piracy, with full-on multi-ship naval battles raging throughout the narrative.

Whee! There’s a million dollars in F/X right there. Take that, Spielberg!

More than any other medium, comics let you think big. As much as they force economy in the word balloons, there’s an infinite canvas of ideas and space you can draw on. There is no better training ground for the imagination.

Tremendous constraint

The infinite budget is trapped within a confined physical space. Usually something about as big as a letter-sized piece of paper. Sometimes just a comic strip. Sometimes a two-page spread. Your omnipotent powers are trapped in a box of a certain size, and you have to deploy all of the above skills — mastery of the economy of language, the word/text mesh, the passage of time and space — to have the infinite idea translate into a very finite space.

Learning to work with artists

Comics artists are not in it for the money. It’s a notoriously difficult profession to break into and stick with. Also true for writers, but while a writer can write a comic in a few working days, it takes an artist at least weeks to draw one. So the investment ration in the writer:artist relationship is way out of whack.

Since writers are also conventionally the “idea people,” it’s frankly a weird dynamic. Sometimes you luck out and find an artist who is completely in sync, and totally committed to the bit, and you take it as far as it goes.

Often, though, the artist — stops. They’ve found a better-paying gig (or a paying gig, period), or they’ve lost interest, or there isn’t a payoff to the project that seems evident and they want to focus on other things. Unless you’ve got a lot of money to pay them to follow through on things (I didn’t), you can’t really fault them. You can cajole, wheedle, promise, negotiate — but you’re ultimately powerless in the hands of another to see something get to fruition.

It gives you a ton of hands-on experience in sharing an idea, inspiring somebody to get on board with it, and then being as consistent and reliable as humanly possible on your end to ensure they get what they need to succeed. Some artists need things explained in complete detail. Others much prefer “I need a fight scene here, and it has to end like this.” You learn to work with all sorts of other creatives, from the affable to the temperamental.

[This is a bit of a demarcation line -- from here it’s less “what can you learn from working on comics for a bit” to a more diarist “what did I learn from a decade-plus of beating my head against a wall”. You can skip down to the end if you want to avoid the maudlin bits.]

Learning to pitch

This is getting a little far afield of what anyone can learn by doing comics for a while. But part of the process when I was trying to make a go of it was pitching comics companies, large and small, to see if they’d be interested in what you were doing. In retrospect, I think all of this would have been much easier if I’d been in a place where I could form relationships, instead of in Sherbrooke, Quebec for the bulk of this part of my life.

It was, again, a tremendous skill to learn. How do you package something to get somebody’s attention? What do publishers need to know vs what audiences need to know? How do you sell something with a 2-3 sentence email that entices somebody to take the time to open and read the attachment? It’s its own art, and concurrent with working as a copywriter, then strategist with a national ad agency, it was a good art to learn.

Learning to fail

You may have noticed I’m not a professional comics writer. Which is fine — with time and some tempering, I can even admit to myself now that if I’d been given the opportunity to pursue it, I’d be a solidly b-list writer: probably pretty good, with solid ideas and sound writing, but not up there with the Alan Moores and Grant Morrisons, Dwayne McDuffies, Kelly Sue DeConnicks, Tom Kings, etc. I would have been fine. I would not have been great.

Through one lens, my comics-writing “career” was a succession of failures — good ideas that never found an audience, drawing-board projects that never found a publisher, amazing ideas that never found the right artist to even push through the pitch phase.

The “coulda, woulda, shoulda” has been painful at times. Even loading old projects onto the blog (and I’m not even 10% there — I did a lot over almost two decades of striving) is bittersweet. No fewer than four of my former collaborators have their own Wikipedia pages now, which feels weird. My wife had to see me through a legitimate identity crisis about five years ago, when we went to a comics convention in Toronto and I ran into a few collaborators who were cutting their teeth at the same time as me and are now thriving in the industry.

For a very long time, though, I would get myself up, dust myself off, find as much passion for one project as I had for the last, and plunge back in. The “final” project was one I truly believed would set the world on fire, crashed and burned when the artist involved just decided to stop working on it with no further explanation, and that… capsized me. That was the hard stop — I haven’t written for comics in the decade-plus since.

Not the passion, though — that just started to go in other directions. Creativity at work, other personal projects — even, eventually, this thing right here. There’s no shortage of outlets for the creative spark if you’ve got it and want to invest it somewhere.

But I learned a ton from not succeeding. Every non-success was its own learning process, and contributed to all of the above — economy of language, an understanding of the mesh of art and language, developing a relationship with the passage of time and space. It also built scar tissue, and the ability to put disappointment behind you and move on to the next thing. There’s always a next thing.

In short, make comics

It doesn’t have to be a big thing. But you can do it today! Now! Grab a sheet of paper, draw some boxes, and have Stick Person 1 go on a little adventure. Think about the infinite possibilities inherent in that blank page, but also the tremendous constraints of that physical space. Hell, just take a bunch of panels from an existing comic and draw over the word balloons. But get in there and experiment. See how the words mix with the images and complement (or contrast) them.

I guarantee you won’t regret it.

April 25, 2021

Soundtrack:

Jason Collett, “Best Of

AceMoMa, “A New Dawn

Lo Talker, “A Comedy of Errors