by Christopher Johnson
Tennis Canada CEO and President Michael S. Downey, his employees, and popular Tennis Canada players Denis Shapovalov and Felix Auger-Aliassime considered my photography good enough to use for commercial purposes on their various websites and accounts to glorify themselves, receive endorsements and promote their products including merchandise and ticket sales for professional events.
Yet between 2015 and 2018, they often used my copyrighted intellectual property without credit or contacting me for expressed written formal authorization signed by both parties. Despite a drawn out legal battle and dozens of communication exchanges dating back to 2016, they have refused to pay for unauthorized usage of my works.
Most responsible media organizations have editors and payroll department workers who track any materials from contributors. They reach out to contact them for bank details, and then ensure payments are delivered usually within 30 days.
Tennis Canada’s CEO and President Downey, on the other hand, has claimed through his lawyers that he doesn’t have to pay because “exposure”, “photo credit” and “promotional value” is sufficient.
This goes against the most basic principle of society: people should be paid for their work.
For decades, paid pro photographers have automatically received photo credit, exposure or promotional value along with payment for their work. Somehow, Mr. Downey and others have convinced some photographers to give away their work for free.
I have challenged this in court under Canada’s Copyright Act, which gives content creators such as photographers exclusive ownership of their creations by default.
It’s unreasonable for Mr. Downey and Tennis Canada employees or players to claim that “exposure”, “photo credit” or “promotional value” are somehow lawful and useful forms of payment. “Exposure” has no definable, quantifiable value or currency. It is not gold, silver or cash. Journalists, students, interns, retirees and other unpaid “volunteers” cannot use “exposure” to pay bills for flights, hotels, food, rent and other costs. The economy does not run on “exposure”. We cannot pay taxes with “exposure” to fund the salary of Mr. Downey and the training centers, coaches and support staff that helped to develop, market or promote promising young players such as Mr. Shapovalov and Mr. Auger-Aliassime. We all need money to live. Exposure pays for nothing.
If the Defendants truly believe that it’s sufficient to reward journalists with “exposure” not payment, then the Plaintiff could also insist that lawyers, judges, court clerks, Tennis Canada executives and players should also work for “exposure” not payment. But I would not do this because it is absurd with no basis in law.
I believe that “payment for work” is the core concept underpinning our society and the Copyright Act. We must protect this fundamental tenet of our society. The Copyright Act protects me from people who would use my work without payment. In this case, the Defendants have used my work and have not yet paid. They also encouraged or permitted other parties to use my works without consent or payment. Instead of paying me, the Defendants have mounted a lengthy, costly and wasteful campaign against me, significantly damaging my ability to earn income.
Their unauthorized usage of my photos cost me the ability to sell them to other potential clients. For example, fans of Mr. Shapovalov, without contacting me or replying to my requests, posted my images of Mr. Shapovalov and Rafael Nadal which they found on my sites but more importantly on the sites of Tennis Canada from May 2018 onward. These people should have been contacting me to purchase these photos. But why would they pay me for photos if they thought they could get them from Tennis Canada for free, since they perhaps believed that Tennis Canada “owned” the photos and was “giving them away for free” as promotional materials for commercial purposes. After all, they did find these photos on Tennis Canada’s sites, which often promote or give away photos for promotional and commercial purposes.
This is the root problem of copyright violations. One group steals the photos, and then many other parties think they can use them as well with impunity. In fact, the Copyright Act makes it clear that nobody can use my property for any purpose without my permission. This culture of theft, endorsed by the policies of Mr. Downey and others who believe “exposure” is sufficient reward, are costing photographers worldwide millions of dollars in lost sales. The courts must act swiftly to stop this culture of theft before content creators lose even more opportunities to earn income.
Thus the court should award damages and punishments to deter these actions and prevent others from infringing copyrighted intellectual property and insisting that their labor should be rewarded with “exposure” not cash.
Copyright infringement is rampant in tennis media’s “culture of theft”.
Please see examples (https://globalitemagazine.com/2019/01/10/copyright-infringement-rampant-in-tennis-media/)
It’s a common pattern in copyright theft cases for infringers to deny stealing work, and then go on the offensive to discredit and make false accusations against the content creator, hoping they’ll back down and drop their complaints.
Mr. Downey and his underlings in Toronto have not only refused to pay me, they have taken hostile actions against me. They have de facto banned me from events under their control, including Rogers Cup in Toronto. They falsely accused me of “inappropriate conduct”, without evidence or clarification. In the past, while Tennis Canada staff were trying to blacklist me, Tennis Canada staff in Montreal, recognizing my professionalism and world class products, offered me accreditation for events under Montreal’s control in 2015 and 2017.
I have tried for years to build good relations with Tennis Canada employees. Tennis Canada’s main writer Tom Tebbutt featured me in an interview at Wimbledon in 2018, where we were both working as accredited journalists.
At that time, Tennis Canada, which is funded by Canadian taxpayers and donors, was using a non-Canadian photographer based in Florida. Several non-Canadian photographers have told me that Tennis Canada pays them for their work. Yet it’s Mr. Downey policies, explained in emails by his employees, to try to convince Canadian photographers to work for free in exchange for “photo credit”, “exposure”, and “promotional value”.
Photographers in Europe working for Getty and other agencies are making more than 1000 euros per day at tennis events. Tennis Canada uses their work:
I’m sitting on the same benches as these photographers, using the same equipment, and getting similar or better and more creative shots. Yet Mr. Downey and others associated with Tennis Canada expect a Canadian photographer, with equal or more training, skill and professional experience over a 35-year career, to work for free?
Instead of paying me for my photos and accrediting me at tennis events, Tennis Canada’s CEO Mr. Downey has spent hundreds or perhaps thousands of dollars on legal fees to lawyers sending me threatening letters meant to bully, intimidate and silence a working journalist.
I have been able to collect screenshots of some of the infringed materials before Mr. Downey and his employees removed them in 2018. I believe they did this to cover up evidence and conceal it from me. They should have kept a detailed list of every photo they used. They should have sent it to me, along with requests for my bank details to ensure payments within 30 days. They didn’t do this.
This has been ongoing since at least 2015, and some of my work still appears on their sites.
May 11, 2015 — Without my knowledge or expressed written permission, TennisCanada.com made unauthorized usage of my photo of Milos Raonic serving like a bronze statue in the spectacular light of Madrid. I spent years as a professional working photographer developing my knowledge of exposure, saturation and color temperature to create original and unique images such as this. I spent years at tournaments figuring out — by trial and error — the best angle to capture Raonic’s iconic serve. Since interviewing him in Tokyo in 2010, I have studied him carefully in order to anticipate the movements and timing on his serve. I had to go all the way to Madrid, at my own expense, to get the right light and photo position. Art collectors have paid for the purchase of this image. Tennis Canada did not. Tennis Canada most likely used this photo on their social media pages as well.
My expenses included spending more than 1000 euros on flights to Spain, plus daily living costs of about 100 euros per day for 10 days. Tennis Canada would have needed to spend at least 2000 euros merely on expenses to fly and accommodate their own photographer to capture these iconic images.
Costs for Madrid work:
1000 day rate
total 3000 euros
From June 2016 onward, Tennis Canada and outstanding junior players Denis Shapovalov and Felix Auger-Aliassime used my iconic shots of them on their social media pages. They used my work as their main profile photos on their popular Instagram and Facebook pages, which help to generate millions of dollars in endorsements and ticket sales.
They not only used my copyrighted intellectual property without my knowledge or expressed written permission, but they also failed to contact me or credit me as the photographer. This is unusual, even after I commented on Mr. Auger-Aliassime’s tweet with my photo, asking @TennisCanada to contact me licensing and usage. Mr. Auger-Aliassime “liked” me response. Yet nobody connected to Tennis Canada contacted me.
Since I didn’t immediately notice they were using my photos, it’s most likely that Tennis Canada and these popular young players used my copyrighted intellectual property for other purposes as well.
I went to Paris at my own expense and worked for three weeks amid some of the worst rain and flooding in Paris history. I shot these iconic images on outside courts at junior matches, which are usually not covered by big London-based agencies or other photographers. I was the only Canadian accredited to photograph these events, meaning that Tennis Canada lacked a range of supply options.
My expenses included spending more than 1000 euros on flights to Paris, plus daily living costs of about 100 euros per day for 20 days. Tennis Canada would have needed to spend at least 3000 euros merely on expenses to fly and accommodate their own photographer to capture these iconic images in Paris. Tennis Canada, using Canadian taxpayer funding, is spending far more than 3000 euros on every official it flies to events in Europe and elsewhere. Yet they expected to use the work of a professional Canadian photographer for free.
1000 euros flights
2000 euros for 20 days expenses
2000 to 3000 euros for photo work for 2 or 3 days
total 5000 to 6000 euros
While I was in Alberta, Canada in April and May 2018, I was negotiating with Tennis Canada employees who asked for my rates to purchase my photos and possibly work for them as their official photographer, a lucrative job worth thousands of dollars per year.
A Tennis Canada employee in Toronto asked me by email to call her. But she didn’t return my calls nor emails. A separate Tennis Canada employee in Montreal said she lacked budget for 2018, but wanted to consider hiring me beginning 2019. I thus assumed that Tennis Canada would probably not be hiring or paying any photographers in 2018.
Yet Tennis Canada actually used (and most likely purchased) the work of American, British and European photographers. One American photographer told me that Tennis Canada often used his work without payment.
(This raises an important issue. Why is Tennis Canada, funded by Canadian donors and taxpayers, using the work of non-Canadian photographers, when Canada produces some of the world’s best sports photographers?)
While claiming they lacked a budget to pay photographers, Tennis Canada in 2018 used several of my photos of rising star Denis Shapovalov on their website and social media pages.
These iconic images of Shapovalov are the result of my spending years at tennis events worldwide figuring out the best photo positions, angles, lighting, exposure and techniques to capture the best images of tennis players. To capture the inspiring athleticism and elan of Shapovalov, I utilized every position I could think of. Using my years of experience studying how light works at sporting events, I climbed to the top of the stadium on a hot day in Rome to make the best use of a brief period of sunlight casting shadows on the court. I also went into a specialized “pit” area behind and below the court, exposing my lungs, skin and equipment to the tiny specks of dust and clay that can ruin camera gear. Only accredited photographers are allowed in this pit area. No amateur photographer has access to these positions, and they haven’t spent 20,000 dollars or more on equipment to capture such iconic images of fast-moving subjects in changing light and weather conditions.
I believe these are among the most iconic images of Shapovalov. Tennis Canada clearly loved my work. Without my expressed formal written permission, they hyped these images on their website and social media pages. Tennis Canada officials were among large numbers of people publicly praising my work, which gained more than 1000 “likes” and hundreds of shares.
Tennis Canada’s official website featured my photos on their main stories about Shapovalov, alongside the work of a paid writer Tom Tebbutt. If Tennis Canada is paying executives, officials, coaches, trainers, players, writers and editors, they should also absolutely pay photographers for using our work on their sites.
As a result of Tennis Canada hyping my images, a number of other websites and social media pages (including fan pages for Shapovalov and other players) used my copyrighted intellectual property without my consent or knowledge. They perhaps felt they had a legitimate right to use these images, since they appeared on Tennis Canada’s sites.
Every one of these users should have contacted me to identify themselves by name and to seek my expressed formal written consent to use my images. They should have sought my bank details in order to pay me for using my work. My camera gear isn’t free. My expenses are not zero. I am working for pay just like every other worker in Canada.
Tennis Canada and these “fan pages” promoting Tennis Canada made unauthorized usage of at least 10 of my photos of Shapovalov, as well as my photo of Rafael Nadal.
My expenses included spending more than 1000 euros on flights to Rome, plus daily living costs of about 100 euros per day for 10 days. Tennis Canada would have needed to spend at least 2000 euros merely on expenses to fly and accommodate their own photographer to capture these iconic images in Rome, on top of paying a daily or weekly rate for photographers (who typically charge corporations more than 1000 dollars per day).
1000 euros flights to Rome
1000 euros living costs in Rome at 100 per day for 10 days
4000 to 5000 euros week rate at 1000 per day for 5 days
total 6000 to 7000 euros