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January 4, 2014 | EntertainmentFrom the blog

Copyright Pirates Shipwrecked: Supreme Court of Canada to the Creator’s Rescue

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Domenic Romano

Founder & Managing Partner

In his classic 18th-century novel Robinson Crusoe, Daniel Defoe warns of “the folly of beginning a work before we count the cost.”  Nearly three centuries later, following the Supreme Court of Canada’s landmark decision in Cinar Corp. v. Robinson, Defoe’s words are ringing true—especially for a number of television companies and professionals involved in a battle of Crusoe-inspired children’s shows.

Robinson Curiosity vs. Robinson Sucroë

In the 1980s, a Quebec artist coincidentally named Claude Robinson developed an educational children’s TV show named The Adventures of Robinson Curiosity.  Like Robinson Crusoe, Robinson Curiosity lives on a tropical island and interacts with the island’s other inhabitants.  Despite Claude Robinson’s various efforts to attract investors, The Adventures of Robinson Curiosity stalled, and the project was shelved by the end of the decade.

Years later, while flipping channels in 1995, Robinson was unpleasantly surprised to discover a children’s show named Robinson Sucroë, which was “produced by several companies (Cinar Corp., France Animation, etc.) that were once given access to his project.  The show was being aired internationally—on France 2, BBC, Teletoon and other networks.”  Both children’s shows featured “a bearded, Robinson Crusoe-inspired protagonist who wears glasses and a straw hat.  In both works, the protagonist lives on an island and interacts with other characters.”  According to one expert, “there were latent similarities in how the two works used atmosphere, dynamics, motifs, symbols, and structure to convey meaning.”

Claude Robinson considered Robinson Sucroë to be a blatant copy of his TV show.  He sued a slew of companies and individuals for copyright infringement in Quebec.  Robinson Sucroë’s production company and directors, as well as the TV show’s creator, co‑producers and distributors, were all named as defendants.  After thirteen years of conflict and an 83-day trial with 40 witnesses, the Quebec Superior Court ruled in 2009 that the abovementioned parties were liable for infringement of Robinson’s copyright in The Adventures of Robinson Curiosity, with damages totaling over $5 million CAD.

The defendants appealed the trial court decision to the Court of Appeal for Quebec.  In 2011, the appeals court upheld the trial court’s findings of liability, for all but one of the defendants, but reduced several of the awards for damages.  Both sides then appealed to the Supreme Court of Canada.

On December 23, 2013, Canada’s highest court upheld the trial court’s findings of liability and reinstated much of the damages that had been reduced by the Court of Appeal.

A Tale of Two Borrowings?

One interesting coincidence of Claude Robinson’s tale is the fact that he liberally borrowed key portions of The Adventures of Robinson Curiosity from the Robinson Crusoe storyline, but subsequently pursued the Robinson Sucroë parties for copyright infringement.

The Canadian Supreme Court considered Robinson’s inspirations and agreed with the trial judge’s determinations that The Adventures of Robinson Curiosity was sufficiently unique from Robinson Crusoe to deserve its own protection.  The Court discussed the “distinct visual appearance and particular personalities” of Robinson’s characters, which distinguish them from Defoe’s 1719 novel.

In addition, it is important to note that Robinson Crusoe resides in the public domain, and Robinson’s borrowing of elements from the novel is allowed.  Calculating the lifespan of a copyright can be complicated and may depend upon the date of the author’s death or of the creative work’s creation or publication.  However, both in the United States and Canada, all copyrighted works eventually enter the public domain and lose their copyright protection.

Canada Steps Up Protection for Rights Holders

The arts community appears relieved for Claude Robinson, who can finally rest easy after his 17-year legal battle.  The Robinson decision affords broad copyright protections for similarly situated rights holders in Canada, but the lines are not so clearly defined in the United States.

Certain courts in New York and elsewhere separate the protectable elements of copyrighted works from the unprotected elements, before determining if the copying is substantial.  Canada’s highest court rejected this approach, opting for a “holistic” assessment and determining that “it is important to not conduct the substantiality analysis by dealing with the copied features piecemeal.”

After Robinson, copyright holders who are inspired by works in the public domain may have more ammunition in Canadian courts.

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