A bearded man who wears glasses and a straw hat. He also lives on an island. If that kind of character appeared in two different television shows, would that be enough to find copyright infringement? Not by itself. But with other supporting evidence, the Supreme Court said yes in Cinar Corporation v. Robinson, 2013 SCC 73.
The plaintiff, Claude Robinson, spent years developing an imaginary universe for a children’s television show called ‘The Adventures of Robinson Curiosity’. The plaintiff drew inspiration for his character Robinson Curiosity from Daniel Dafoe’s 1719 novel Robinson Crusoe. The bearded and bespectacled Curiosity lived on a tropical island and must learn to interact with its other inhabitants. The plaintiff drew detailed sketches and storyboards, wrote scripts and synopses, and designed promotional materials.
In attempts to get the Curiosity project developed, in 1986 the plaintiff gave a copy of the project to directors and officers of Cinar Corporation, namely, Ronald Weinberg and Micheline Charest. Nothing came of Cinar’s efforts to find financial partners for the project.
In 1995 the plaintiff watched on television the first episode of a new children’s television show called ‘Robinson Sucroë’. He was stunned to see that Sucroë, as he perceived it, was a blatant copy of Robinson Curiosity.
Robinson Sucroë featured a bearded glass-wearing protagonist in a straw hat. He also lived on an island and interacted with other characters. They were differences however. In Curiosity the other characters were animals whereas in Sucroë the other characters were mostly human. Pirates also bedeviled Sucroë as villains yet never appeared on Curiosity’s island. The plaintiff also came to discover that Cinar, Weinberg, and Charest, were also involved in the production of Sucroë.
Under the Copyright Act an owner of a work, like a television show, has the right to reproduce the work or any substantial part thereof. Copyright infringement occurs when someone does something, without the consent of the owner, that only the owner of the work has a right to do.
The plaintiff sued the defendants for copyright infringement alleging that the defendants, without his consent, copied a substantial part of his work when they created Robinson Sucroë. Two levels of lower courts sided with the plaintiff. The defendants appealed to the SCC.
On appeal to the SCC, the defendants claimed that the taking from the Robinson Curiosity project did not constitute a substantial part of Robinson Sucroë and therefore did not infringe Curiosity’s copyright. On appeal to the Supreme Court of Canada, the defendants argued that the trial judge should have assessed the similarities between Curiosity and Sucroë in a different way; that is, the trial judge should have determined what elements of Curiosity were original, exclude non-protectable works from Curiosity, and compare what remains between Curiosity and Sucroë. (This approach is similar to the ‘abstraction-filtration-comparison’ approach used in the U.S. to assess substantiality in the context of computer software infringement.)
The SCC disagreed. The court said the correct approach to assess whether substantial copying has occurred is qualitative and holistic. The court should look at the Curiosity project and the Sucroë project as whole works and not as isolated parts. The substantiality analysis should not be conducted piecemeal where Curiosity would be dissected into its component parts. Rather, the cumulative effect of the features copied from Curiosity must be considered to determine whether those features amounted to a substantial part of the Curiosity work. This ground of appeal was dismissed.
The defendants also claimed that the features copied from Curiosity in Sucroë were not protected under the Copyright Act. The defendants contended that the only similarities between Curiosity and Sucroë were elements drawn from the public domain, such as those in the Robinson Crusoe novel, and other elements that are not original or protectable under the Copyright Act.
The SCC disagreed. The court found that the defendants copied elements from documents detailing the Curiosity project that the plaintiff presented to them many years ago. The trial judge found that the defendants copied the plaintiff’s overall architecture for a television show, that the graphic appearance and several aspects of the personality of Curiosity’s protagonist were copied, that the secondary characters gravitating around Curiosity were copied, and that the appearance of the village that the characters inhabited was also copied. The SCC said that these findings were not confined to the reproduction of abstract ideas, rather they focused on the detailed manner in which the plaintiff expressed his ideas in Curiosity and the quality and extent to which those ideas were found in Sucroë.
The individual defendants, Weinberg and Charest, also appealed the lower court ruling that the directors and officers of Cinar were personally liable for the infringement. They argued that the plaintiff failed to establish on a balance of probabilities that they knowingly engaged in copyright infringement, contending that they had little direct involvement in the creative process of Sucroë.
The SCC disagreed. The court said that the findings of the trial judge were supported by the evidence. On review of the evidence, the trial judge found that Weinberg and Charest deliberately, willingly, and knowingly infringed the plaintiff’s copyright. The trial judge accepted testimony that the directors had access to and actively consulted the plaintiff’s drawings during the development of Sucroë. The trial judge drew adverse inferences from the directors’ persistent denials that they had access to the plaintiff’s works despite the fact that they were given copies of it and made comments on it in the course of consultations with the plaintiff’s production partners.
This case makes it clear that in order to avoid claims of copyright infringement, and possibly personal liability, when drawing inspiration from a protected work, you have to make sure not to copy the qualitative and holistic elements that make the inspiring work original, even if some of those ideas have been around since 1719.
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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information. You can reach Ryan at firstname.lastname@example.org and (905) 287-2215.