—-Tennis Canada CEO Michael Downey and players Denis Shapovalov and Felix Auger-Aliassime have demanded a tennis journalist pay their legal costs for suing them for alleged copyright infringement of at least 14 of his photos.
Calgary-based lawyer Blake Hafso, representing the defendants from Tennis Canada, said they will demand that veteran Canadian journalist Christopher Johnson pay “enhanced costs” for suing them.
Mr. Johnson, a trained journalist who has been covering international tennis for more than a decade, filed a civil claim against them in Alberta provincial court in early January seeking compensation for unauthorized usage of at least 14 of his photos since 2015 without his expressed formal written consent.
He said the defendants, without contacting him, took screenshots off his tennis website GrandSlamMagazine and used them on their social media accounts and www.TennisCanada.com, the official site for Tennis Canada, a federal agency with 120 employees and a $15 million annual operating budget funded by taxpayers and donors.
“They liked my work enough to use it to promote themselves and sell products and tickets. They should pay me for that,” says Mr. Johnson. “If they can pay their lawyers to threaten and bully me, they can afford to pay photographers for using our work.”
Mr. Johnson says the defendants denied the allegations for several months and then admitted copyright infringement during a pre-trial conference May 23 this year. Mr. Johnson says they removed most of his photos from their digital accounts last August, but continue to use some on Twitter and Facebook. He said he has rejected their offers of 3500 Canadian dollars earlier this year and 7000 during the pre-trial hearing. He said lawyers, billing perhaps between 10,000 to 20,000 dollars, are using “scare tactics” and demanding “inflated” legal costs to financially punish him for seeking payment for his work.
Canada’s Copyright Act 2012 gives photographers sole ownership by default and awards statutory damages up to $20,000 per photo.
Mr. Johnson, a graduate of Carleton University’s school of journalism in Ottawa, Canada, says he’s worked in 110 countries and 10 war zones, and sold more than 500 photos to media worldwide. Fluent in Japanese, Thai and Spanish, he’s been accredited at major sporting events including Wimbledon, the French Open and other tennis tournaments. In 2008 he moved images from the Tibetan uprising in Lhasa which Reuters listed among their Pictures of the Decade. The Canadian Association of Journalists selected his 2013 coverage of Typhoon Haiyan in the Philippines as a finalist for Best Online Media along with CBC, Global TV and Huffington Post.
Mr. Johnson, an avid player and part-time tennis coach, said he founded www.GrandSlamMagazine.com to “glorify” tennis players and develop the sport in Canada, which has recently produced several top players. He said that players, who earn millions in prize money and endorsements, often like his work enough to use it on their sites for commercial gain, but then deny copyright infringement and offer to pay him only in “exposure” or “photo credit.
“Exposure doesn’t pay for my gear, flights, hotels or food. It’s not silver or gold, cash nor currency,” Mr. Johnson said. “The rampant culture of online piracy is damaging thousands of photographers and other content creators.”
“Most responsible media organizations have editors and payroll departments 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,” Mr. Johnson said. “The defendants, on the other hand, have claimed through lawyers that they don’t have to pay because ‘exposure’, ‘photo credit’ and ‘promotional value’ are sufficient. This goes against the most basic principle of society: people should be paid for their work.”
Mr. Johnson says it’s unfair that the defendants pay their lawyers instead of paying a photographer. He said three lawyers have sent him more than 16 emails since August 2018, often containing accusations and threats of legal actions concerning forcible removal from a tennis event, defamation, contempt of court, restraining orders and payment of inflated legal costs. He said Tennis Canada, rather than paying their bills, have blacklisted him from events. “I am a journalist collecting debts,” Mr. Johnson said he wrote in an email to Mr. Hafso and the defendants. “You can’t steal my work, refuse to pay me, and then use more than a dozen emails to stonewall, bully or threaten me, and then demand I pay you for this mistreatment.”
Earlier this year, Mr. Johnson said the defendants threatened to sue him for defamation.
Mr. Johnson said the defendants falsified or misrepresented materials they submitted to him and the court on May 9, 2019 in order to frame him on false charges of harassment and aggressive behavior. He said they refused to tell him how they obtained his private DM messages with a friend on Twitter, and then falsely accused him of trying to “intimidate” a witness. He said that the lawyers continued to make false accusations against him before and during the pre-trial conference May 23, and they denied overwhelming evidence proving the defendants used his works for commercial purposes.
Mr. Johnson said that Mr. Hafso on June 3 also threatened to file a restraining order against him to prevent him from directly contacting the defendants and publishing details of the case online. “You continue to contact my clients directly despite repeated requests that you cease to do so and despite your agreement to discontinue that practice. This is highly inappropriate and needs to stop immediately,” Mr. Hafso wrote in an email June 3, according to Mr. Johnson. “I am seeking instructions regarding seeking a procedural Order prohibiting you from these continued communications. It is possible the recipients may be forced to look into restraining orders against you if you persist.”
Mr. Johnson said that the defendants and lawyers are using scare tactics to deflect attention away from the core issue of copyright infringement.
“Instead of paying me in June 2016, May 2018 or September 2018, your legal team has inflated legal costs and wasted my time by sending me more than a dozen emails with various unsubstantiated accusations, all meant to bully, harass and intimidate a journalist seeking payment,” Mr. Johnson said to the defendants and Mr. Hafso in an email.
“Instead of paying your bills, you are trying to maximize legal costs — at the expense of taxpayers who fund Tennis Canada — and then pass on those exorbitant costs to an innocent journalist seeking payment for unauthorized usage of his works for commercial purposes,” Mr. Johnson said. “This is absurd. You cannot steal my photos off my website; steal my private communications with a friend; and waste months of my time defending myself against false accusations; and then force me to lose money in court because I am simply trying to collect payment for usage of my works.”
“It is absurd to offer me $3500 or $7000 and then demand I pay exorbitant legal bills which could exceed that amount,” Mr. Johnson said. “I trust that Mr. Shapovalov and Mr. Auger-Aliassime, who have benefited from the positive media coverage of myself and my colleagues, are aware of the longterm repercussions of trying to financially punish a journalist and ruin a business dedicated to developing tennis in Canada.”
Mr. Johnson said that the defendants should compensate him for lost time and energy collecting payment. “My time is valuable also. I can demand the same amount for my costs. If the Defendants’ lawyers are billing $10,000 to $20,000 for legal costs, I can do the same.”
Mr. Johnson said that Mr. Hafso warned him against reporting on the case in Alberta provincial court.
“Given your pattern of producing without prejudice communications and details on your website we will seek to keep all communications and negotiations confined to the Provincial Court processes,” Mr. Hafso wrote on June 3. “I am not an expert in this field, but I question to journalistic ethics of your decision to use your media website(s) to publish articles about the litigation without revealing your conflict of interest in the subject matter.”
Mr. Hafso told Mr. Johnson on June 4 that he does not “consent” with Mr. Johnson sending emails to the court during the mediation process ahead of a trial. “Due to your habit of posting our communications on your website I will seek to limit our communications to those required by the Court processes. You have received a great number of cease and desist letters regarding direct communications with my clients. Any further direct communications in that regard will be ignored and considered a form of harassment in the circumstances.”
Mr. Johnson said the lawyers tell him to communicate only with them, and then they fail to respond to his communications.
“The Defendants cannot violate the Copyright Act, then refuse to pay the victim, then demand that the victim only contact their lawyer, and then threaten to slap a restraining order against the victim after their lawyer fails to communicate with the victim. These illogical, irrational actions are not in good faith, and they waste valuable time and energy of the victim and the court,” Mr. Johnson wrote. “In my role as a journalist and debt collector, I have the right to contact people who owe me money for unauthorized usage of my works, or who continue to use my copyrighted works without my consent.”
“If you do not wish to receive emails from me, then pay your debts immediately, and make immediate restitutions and resolutions to the problems created at your end,” Mr. Johnson said. “This includes blacklisting me from international tennis events and ruining my business and ability to work.”
He said the lawyers for several months “willfully ignored evidence” and refused to acknowledge information about copyright infringement posted online on January 10, 2019.
“The Defendants already knew this information, since they were the ones who posted the photos, and then removed most of them in August 2018. Thus the repeated demands for ‘information’ from the victim are part of a deliberate attempt to grossly inflate legal costs,” Mr. Johnson said. “This dispute could have easily been settled out of court without wasting money (including taxpayer funds) on lawyers.”
Citing journalistic duty to report matters of public interest, Mr. Johnson has summarized, below, the emails received first from Tennis Canada lawyer David Outerbrige, and later from lawyer Blake Hafso, between August 2018 and June 2019 while the Defendants with Tennis Canada refused to pay for unauthorized usage of at least 14 photos.
1—-Aug 5, 2018:
–The Defendants through their Toronto lawyer David Outerbridge made false accusations of harassment. “You attended at the Rogers Cup, approached a Tennis Canada employee and engaged in discussion and conduct with him in a manner that the employee found to be vexatious and harassing.”
–Denial of access and violent threat of forcible removal. “You are hereby advised that if you attend at the Rogers Cup event again, you will be denied entry, and you will be forcibly removed if necessary.”
2—-Aug 8, 2018
–The Defendants through Mr. Outerbridge attempted to muzzle a journalist seeking answers from Katie Spellman, who is Petra Kvitova’s public relations manager and also Tennis Canada media manager. “Please stop communicating with Ms. Spellman.”
3—-Oct. 22, 2018
They waited almost a month to respond to my Sept. 27, 2018 invoice, then refused to pay. “Tennis Canada will not be paying anything in connection with what you describe below as an invoice.”
4—-Dec. 13, 2018
–Attempting to inflate legal costs, the Defendants through Mr. Outerbridge unnecessarily demanded that the victim, rather than the copyright infringer, provide information about photos which the Defendants used and then removed. In fact, the Copyright Act states that the infringer must return all materials to the owner. Since Mr. Downey and Tennis Canada ordered the removal of my photos, Tennis Canada employees already knew which photos they infringed. Thus this email was a waste of time, and an attempt to inflate legal costs.
5—-Dec. 20, 2018
–Attempting to inflate legal costs, the Defendants through Mr. Outerbridge unnecessarily demanded again that the victim, rather than the copyright infringer, provide information about photos which the Defendants used and then removed. In fact, the Copyright Act states that the infringer must return all materials to the owner. Since Mr. Downey and Tennis Canada ordered the removal of my photos, Tennis Canada employees already knew which photos they infringed. Thus this email was a waste of time, and an attempt to inflate legal costs.
–False denial of infringement, and refusal to take responsibility for violating the Copyright Act. “Tennis Canada is not acknowledging that there has been any unauthorized use of photos.”
–Refusal to respond properly to invoice sent three months earlier. “If the particulars are not provided, Tennis Canada will not be responding further.”
6—-Jan. 7, 2019
–The Defendants through Mr. Outerbridge attempted to inflate legal costs by insisting that a journalist seeking payment only contact lawyers, not copyright infringers. “Direct your correspondence to me. Tennis Canada personnel will not be responding directly to you on legal matters.”
–Willful ignorance and refusal to accept information that the victim already provided to them. “Please identify the images in question, and provide details of when, where and how they were used, and by whom. Although you suggest in your email below that I have ignored your correspondence, that is not correct. I have specifically requested certain information from you, that has not been provided.”
–Refusal to respond properly to invoice sent four months earlier. “If the particulars are not provided, Tennis Canada will not be responding further on the issue of alleged copyright infringement.”
–Bogus cease and desist letter with false accusations and threat to sue for defamation. “You have made defamatory statements about certain tennis players and Tennis Canada personnel.” “You are not permitted to make disparaging statements about tennis players and Tennis Canada personnel in the process. Please cease and desist from making any further disparaging comments. Tennis Canada reserves its right to take appropriate measures, including legal proceedings if necessary, in connection with such defamatory statements.”
7—-Feb. 6, 2019 Dispute Note via lawyer Blake Hafso
Attempting to bury a victim in paper work, the Defendants through their Calgary-based lawyer Blake Hafso sent a 35-point Dispute Note full of bogus claims, unproven accusations, twisted logic, contradictory statements and denial of responsibility for copyright infringements in violation of the Copyright Act. Here are some claims:
–“Tennis Canada is a not for profit amateur athletic association.” FACT: Mr. Downey claims on his LinkedIn page that he oversees 120 employees with a $15 million annual operating budget.
–“Mr. Downey denies any knowledge or involvement with the Plaintiff.” FACT: Mr. Downey blocked me on Facebook and ordered removal of photos from various digital media accounts.
–“Mr. Shapovalov and Mr. Auger-Aliassime deny any knowledge or involvement with the plaintiff.” FACT: They found and used my photos of them. They also know me from press conferences.
–The plaintiff “consented” to give away his photos in exchange for exposure. FACT: I had been requesting payment since 2016 and was negotiating in May 2018 potential full-time paying work as Tennis Canada’s official photographer.
–“There was no commercial purpose”. FACT: Tennis Canada’s website and social media accounts advertise and sell products. All of their photos are for commercial purposes meant to hype tennis players earning millions of dollars from prize money and endorsements.
–“Photo credit was given.” FACT: the Defendants did not give photo credit in most cases, even after my complaints.
–Tennis Canada first became aware of my complaints in May 2018 and removed my photos “with haste”. FACT: They used several of my images for 3 more months before Mr. Downey ordered their removal in August. As of June 2019, they were still using my photos of Mr. Auger-Aliassime.
–“The Plaintiff has failed or refused to provide” information about the infringed photos. FACT: I sent them a link to my blog post a month earlier detailing with screenshots all 14 infringements.
–“The Plaintiff’s conduct toward Tennis Canada and its employees has been aggressive and inappropriate and prevented any reasonable resolution of his alleged complaints.” FACT: I did not damage them. They all continue to be gainfully employed with Tennis Canada. They damaged me and prevented me from working as a tennis journalist.
–“The Defendants deny any material involvement in any alleged postings of photographs by the Plaintiff as alleged, in any manner.” FACT: The players posted them on their personal social media accounts for commercial purposes where they sell and hype products of their sponsors.
–The Defendants “deny infringing upon the Plaintiff’s copyright or otherwise contravening the Copyright Act as alleged, or in any manner.” FACT: During the May 23 pre-trial conference, their lawyer admitted they infringed my works and offered $7000 compensation.
–If they did infringe, it was “unintentional”. FACT: It’s impossible for Mr. Shapovalov and Mr. Auger-Aliassime to accidentally find my photos on my website, accidentally screenshot them, and unintentionally post them on their digital media accounts.
–the Plaintiff “benefited from the exposure and photo credit”. FACT: They never provided links to my sites promoting my work. Exposure and photo credit has no value as cash or currency. It cannot pay bills.
–Remedy sought. “Dismissal of the Civil Claim with enhanced costs.” FACT: Their lawyer later admitted they infringed my photos, but still demand that I pay for their legal costs, including time spent on at least 15 emails.
8—-Feb. 19, 2019
–Willful ignorance and refusal to accept information that I already provided to them. In order to inflate legal costs, Mr. Hafso continued Mr. Outerbridge’s strategy of demanding I send them information that they already had. The Defendants, not the victim, have always been responsible for collecting information on the photos that they used and removed. It’s their job — not mine — to provide their lawyers with that information.
“If you are wish to provide a copy of each of the infringements you allege that would also be helpful in seeking to negotiate resolution in the short term.”
–Disregarding my right to represent myself in small claims in provincial court, which helps to expedite the process and reduce legal costs and burden on the system. Mr. Hafso evidently saw an opportunity for lawyers to gain from the dispute between a journalist and people with Tennis Canada.
“I suggest you obtain independent legal counsel with respect to this matter.”
9—–March 11, 2019 Initial Low-Ball Offer
–The Defendants continued to deny infringing my works. “My clients do not admit liability and continue to assert the defences pled in the Dispute Note.” (Mr. Hafso would later admit before a Judge during a pre-trial conference on May 23 that they did in fact infringe my works.)
—-Based on their acceptance of statutory damages, they made the lowest possible offer of $3500, based on 7 photos, while denying infringement of at least 7 other photos. This amount of $3500 is probably less than their legal costs for a trial.
–They claimed: “This offer is being made on a cost of litigation basis.” “There would be value to all in simply agreeing to a reasonable amount of compensation rather than incurring the expense of further litigation.”
If that was the case, they should have made that offer BEFORE, not AFTER, inflating legal costs and sending me several emails including a 35-point Dispute Note, all at my expense of time and energy.
It’s absurd for them to expect I would accept payment of 3500, which would not even cover their legal costs nor the time I had to spend refuting their 35-point Dispute Note. This proves they were not acting in good faith as claimed.
–They cited a blog link providing complete details of the 14 infringements. Yet more than two months later, during the May 23 pre-trial conference, they later demanded I send them that same information. This shows their intent to inflate costs while dragging this case through the court system. Yet Mr. Hafso mentioned only 7 infringements (which would still carry statutory damages of $140,000).
Mr. Hafso wrote an acrobatic sentence. “I have intentionally omitted getting into the details as to why I don’t believe liability is likely to arise in relation to those photos as I suggest it is more valuable to all in the context of these negotiations to focus on what sort of resolution would be tenable.”
They then willfully ignored overwhelming evidence, which they cited, and denied infringing my works. “My clients are prepared to offer you a settlement based upon the assumption that you would be able to prove liability for each of the seven photos you appear to be alleging were infringed, notwithstanding the challenges you would otherwise face in proving liability.”
Mr. Hafso apparently misquoted the Copyright Act by claiming that statutory damages are between $100 to $5000. In fact, this case (stealing 14 photos off a competitor’s website and using them for blatant commercial purposes) would merit statutory damages up to $20,000 per photo.
Mr. Hafso also claimed that the defendant “was not aware” of the infringement. FACT: This is absurd. It’s impossible for a person to take screenshots and upload a photo onto their digital media account without realizing that the photo belonged to another person, not them. Ignorance of the law is not a reasonable excuse. It’s also no excuse for failing to pay for damages.
“In the interests of resolving this matter at early stages.” FACT: evidence proves that the Defendants knew between 2016 and 2018 that I was demanding payment. They received my invoice for 15,000 euros in September and rejected it. They cannot claim, in the 9th communication from lawyers over the course of 9 months, that they are now trying to “resolve this matter at early stages”. Early stages would have meant June 2016 and also May 2018.
After refusing to pay me for almost a year, the Defendants and Mr. Hafso gave me a deadline of two weeks to accept this offer, which would not even cover their legal costs nor the costs of my time spent defending myself against their false accusations and illogical, unsubstantiated and contradictory claims.
10—–May 8, 2019
-As per court instructions, the Defendants through Mr. Hafso sent me more than a hundred pages of materials. They organized these materials in a way to claim that I had been harassing them. Without my consent, they obtained my personal Twitter DM personal messages with a friend, Natan Levi They falsified or misrepresented the dates of these communications in order to frame me for “harassing”, “Intimidating”, “aggressive” behavior. They did not include Mr. Levi’s claims in the private messages that Tennis Canada management were unable to retain good people because they were paying student interns 6 dollars per hour while working them more than 40 hours per week.
11—–May 9, 2019
–They redacted key information in order to take my words or positions out of context. “Any redactions are to preserve privilege or to remove irrelevant and/or immaterial records or information.”
–They stole my private personal messages with a friend Mr. Levi and then refused to explain how they obtained them.
((Here is Mr. Johnson’s reply by email upon discovering these new accusations, which weren’t included in their Dispute Note:))
I would ask you and the court to show all communications without redactions, not just the ones which the Defendants might use to try to frame me, take my words out of context, or misrepresent my communications.
I would also ask you at this moment, and the court on May 23, to reveal full details and information about how the Defendants obtained any of my private communications without my consent. Please explain the legal basis for this in terms of Canadian laws regarding theft and privacy. Would I, or anyone else, have the legal right to obtain and use the private communications of yourself and the Defendants without your consent?
In your legal judgment, is it “good faith” to obtain or use someone’s private communications out of context without their consent, in order to “frame” someone on bogus charges or false accusations? Why was this not mentioned in your original Dispute Note?
Furthermore, is it legal to present such materials to the court without revealing exact details about how the Defendants obtained such private communications? Why would any of this not constitute criminal behavior?
((This is how Mr. Hafso responded to Mr. Johnson’s questions about the theft of my personal messages without my consent:))
“Your objections to those communications being produced is without merit.”
Then Mr. Hafso used Mr. Johnson’s question to him (“How did you obtain my private personal messages”) as an excuse to repeat the threat that the journalist was somehow liable for increased payment of inflated legal costs.
“When written communications are sent between two or more parties that means that any of those parties could conceivably share them with others. I am not aware of any evidence or reason to believe that there was “criminal behavior” or a “theft” of your personal communications directly from you. Bald and unproven accusations of this nature can be considered by the Court when it determines costs of the action.”
12—–May 10, 2019
Mr. Hafso sent an email asking if I intended to rely on any other materials other than the 395 pages of evidence which they received.
13—–May 14, 2019
–Rather than admitting infringement after viewing my 395 pages of evidence proving my Civil Claim, they sent me an unwarranted Cease and Desist Letter in order to inflate legal costs and further clog up the time and energy of the court system.
–In an attempt to intimidate me, the Defendants through Mr. Hafso warned me that I could face two years in jail for “contempt of court”.
–Without proof, they accused me of trying to “intimidate a witness”, Mr. Levi. (They later demanded a simplified trial where I wouldn’t have the opportunity to question Mr. Levi or their other witnesses.)
In fact, I asked my friend Mr. Levi how Tennis Canada’s lawyers obtained my personal messages with him.
Another key fact: During our private communications, Mr. Levi claimed that Tennis Canada management were unable to retain good staff, and they were overworking and underpaying student interns at 6 dollars per hour. If true, this would potentially violate Ontario labor laws.
14—–May 17, 2019
Mr. Hafso twisted my words and mischaracterized my position:
“Thank you for confirming you have received notice of the obligations arising pursuant to the implied undertaking and potential consequences of breaching those obligations.”
In fact, I made no such confirmation.
Mr. Hafso then falsely accused me of threatening Mr. Levi, who declined to tell me how the Defendants obtained my personal messages to him over the course of several years. In fact, I filed no claim of legal action against Mr. Levi, and I did not threaten him. I had the right to ask him what happened to my private messages to him. I had reason to believe my account was hacked and my messages were stolen.
“This message was reasonably interpreted as a threat to bring a further court action against that Tennis Canada employee based on the communications he provided which were included in my client’s document production. Further and in the alternative, this is another example of you seeking to directly communicate with a Tennis Canada regarding your alleged claims despite the prior cease and desist letters.”
After falsely accusing me of threatening his “witness” Mr. Levi, the lawyer then demanded a simplified trial, which would limit or negate my opportunity to question his witness Mr. Levi, and ask him how the Defendants obtained my private personal messages to him via DMs on Twitter.
“In my view it is required by the legislation and would be an efficient manner of adjudication in the event we cannot reach an amicable resolution.”
15—-June 3, 2019
–In yet another unwarranted Cease and Desist letter, Mr. Hafso demanded I communicate only with him. FACT: he had not been replying to my emails during the mediation process, as required by the court.
–The Defendants through Mr. Hafso threatened to file a restraining order against me to prevent me from directly contacting the defendants and publishing details of the case online.
“You continue to contact my clients directly despite repeated requests that you cease to do so and despite your agreement to discontinue that practice. This is highly inappropriate and needs to stop immediately. I am seeking instructions regarding seeking a procedural Order prohibiting you from these continued communications. It is possible the recipients may be forced to look into restraining orders against you if you persist.”
FACT: Mr. Hafso had been failing to respond to my communications in previous weeks. In other words, they violate the Copyright Act, then refused to respond to my invoices for payment. They they demanded that I only contact their lawyer. Then their lawyer failed to respond to my communications. Then they threatened to slap a restraining order because I complained about the lawyer’s failure to communicate with me.”
–While complaining lack of expertise in media law, Mr. Hafso also warned me against reporting on the case.
“Given your pattern of producing without prejudice communications and details on your website we will seek to keep all communications and negotiations confined to the Provincial Court processes. I am not an expert in this field, but I question to journalistic ethics of your decision to use your media website(s) to publish articles about the litigation without revealing your conflict of interest in the subject matter.”
16—-June 4, 2019
–Mr. Hafso told me that he does not “consent” to me sending emails to the court during the mediation process ahead of a trial. He again falsely accused me of harassment.
“Due to your habit of posting our communications on your website I will seek to limit our communications to those required by the Court processes. You have received a great number of cease and desist letters regarding direct communications with my clients. Any further direct communications in that regard will be ignored and considered a form of harassment in the circumstances.”