The Supreme Court of Canada recently released its long-awaited judgment in Robinson v Films Cinar Inc, 2013 SCC 73, which deals with issues of non-literal infringement of a children's television show loosely inspired by Daniel Defoe’s Robinson Crusoe. Copyright owners should now look beyond mere literal copying of their work and consider that, though ideas themselves are not afforded protection by the Canadian Copyright Act, intangible aspects of their work may be protected and expert testimony may assist in identifying latent infringement.
Claude Robinson (“Robinson”) is an artist who, in 1982, prepared sketches, storyboards, scripts synopses and promotional material for a new children’s television show titled “Robinson Curiosity” (“Curiosity”). After having obtained copyright registration for his work in 1985, he attempted but failed to attract investors through a partnership with the Cinar Corporation (“Cinar”). When a new children’s television show produced by Cinar and titled “Robinson Sucroë” (“Sucroë”) aired in 1995, Robinson perceived it as a copy of Curiosity and launched suit against Cinar, co-producers, distributors and individuals. Both the Quebec Superior Court and Court of Appeal found that copyright subsisted in Curiosity, found that it was infringed by Sucroë, and awarded Robinson damages and costs.
Before the Supreme Court, the parties agreed that Curiosity was an original work to which the alleged infringers had access and that the Curiosity and Sucroë shows shared similarities, namely that they featured protagonists inspired by Robinson Crusoe who wore a beard, glasses and a straw hat and lived on an island interacting with other characters who shared common personality traits. However, Cinar disagreed that the similarities constituted a substantial part of Curiosity and argued that they were drowned out amidst important differences, namely that many secondary characters in Curiosity were animals, whereas they were mostly human in Sucroë, and that the latter show also featured pirate “villains”. Also, and perhaps unsurprisingly, Curiosity’s protagonist’s main personality trait was curiosity, whereas the protagonist in Sucroë was not particularly curious.
With regard to the test for infringement, the Supreme Court favoured a holistic approach whereby it considered the cumulative effect of the copied features and assessed whether those features amounted to a substantial part of Robinson's expression in his original work. The Court confirmed that the focus of this exercise is the quality of what was taken rather than the quantity, and that in cases of non-literal copying, “latent” or “intelligible” similarities, such as the use of atmosphere, dynamics, motifs, symbols and structure to convey meaning, can also be relevant.
In this case, many of such latent similarities were identified by an expert semiologist (one who studies “signs and symbols and how they convey meaning”) who testified for Robinson at trial. Because infringement “must be assessed from the perspective of the lay person in the intended audience,” Cinar argued that this expert evidence was inadmissible since it was unnecessary. The Supreme Court disagreed, noting that the nature of some works calls for expert evidence, namely when the work is too complex for a judge to fairly assess (e.g. two pieces of classical music), or in cases such as this one, where a rigid application of the test would unduly restrict the Court’s ability to answer the central question. In this case it “would shift the question to whether the copied features are apparent to a five-year-old.” The Court therefore upheld the trial judge’s holding that the evidence was admissible and concluded that Sucroë reproduced a substantial part of Curiosity.
In addition to awarding Robinson damages as well as profits earned from Sucroë, the Supreme Court awarded him profits earned from the sales of Sucroë’s soundtrack. As there was no evidence that the soundtrack could have been commercialized in the absence of the infringement of Curiosity, the soundtrack’s profits were caused by the infringement and Robinson was entitled to such profits.
Though this case does not bring substantial changes to the law of copyright in Canada, it does confirm the potentially wide scope of copyright protection. Not only can works be non-literally infringed through latent similarities, but rights holders may be able to obtain profits made from works that were not at all infringing, so long as they were caused by the infringement.