Documentary maker fights Vancouver Aquarium's court-ordered edits
Vancouver Filmmaker Gary Charbonneau is being sued for copyright infringement by the Vancouver Aquarium for his documentary Vancouver Aquarium Uncovered, which is critical of the Stanley Park facility’s cetacean captivity program. (GLEN SCHAEFER / Postmedia Network)
A Vancouver documentary maker is challenging a court-ordered temporary trim of a film that criticizes the Vancouver Aquarium’s program of cetacean captivity.
Gary Charbonneau released the hour-long film Vancouver Aquarium Uncovered online in January 2016. The aquarium sued for copyright infringement, saying the film used images from the aquarium’s website, and that filming by Charbonneau and another photographer at the Stanley Park facility also amounted to copyright infringement.
Those claims haven’t gone to trial yet, but the aquarium won an injunction on April 20 ordering 15 images removed from the film.
Charbonneau was in B.C. Appeal Court Monday to challenge that order, backed by the B.C. Civil Liberties Association and the advocacy group Animal Justice.
One issue to be resolved at trial is whether a camera can be used for artistic expression or simply for copying, said lawyer Dan Burnett, acting for the aquarium.
“Is a camera a copying device or an artistic device?” Burnett asked the panel of three judges. The copyright question would be whether a camera was used “to duplicate a display created at the aquarium’s expense.”
Charbonneau filmed at the aquarium, was then approached by staff there, and they “negotiated” a second filming day, with the proviso that the first day’s images would not be used in the film, Burnett said.
The use of those first-day images amounted to a violation of a contract with the aquarium, he said.
The documentary also used still images from the aquarium’s website, as well as video footage from an aquarium-produced video called Cetaceans in Our Care, Burnett said.
Arden Beddoes, Charbonneau’s lawyer, argued that the aquarium sued for copyright infringement, not defamation, so it wasn’t challenging the truth of the documentary.
“The aquarium claims copyright privilege over all video shot at the aquarium ... by anybody,” Beddoes said.
“It can’t be that freedom of expression is treated so lightly,” he said. “The documentary is an investigative piece on a matter of significant public interest.”
The Vancouver park board is to debate a new bylaw in May that would ban the keeping of cetaceans in any parks. There are no whales at the aquarium since the death last fall of two belugas, but the aquarium has five other belugas on loan to U.S. marine parks that it had been planning to bring back to Vancouver, to live in an expanded whale tank.
The aquarium’s copyright suit against Charbonneau isn’t likely to be heard before this fall. The Appeal Court reserved its decision on whether to lift the earlier injunction against Charbonneau's film.