In Lachance v. Productions Marie Eykel inc., 2014 QCCA 158, the Court of Appeal of Quebec has recently upheld the Superior Court’s ruling rejecting the action of Laurent Lachance (appellant) against Marie Eykel and Jacques L’Heureux (respondents), two actors in the well-known Quebec series Passe-Partout, in which Lachance claimed a copyright in the work as well as royalties from the sales of the DVD boxed sets of the series.
Lachance worked for the Quebec Ministry of Education as project director where he participated in the creation and production of 283 episodes of the television series Passe-Partout between 1977 and 1998. He was apparently known in the artistic community as the “Father of Passe-Partout”. However, up until his retirement, he had never claimed from his employer any economic right to the series. In 2006, the respondents obtained from Télé-Québec a licence to sell the first 125 episodes of the series as DVD boxed sets.
In 2007, Lachance claimed for the first time that he was the author of the series and that he was entitled to copyright ownership. He demanded 15% of the sale price of all DVD boxed sets sold and those to be sold in the future.
The respondents argued that Lachance was only a project director hired by the Ministry of Education to develop a concept for the creation of the series, and that pursuant to section 13(3) of the Copyright Act (the Act), Lachance could not be entitled to any monetary compensation since where the work was made in the course of employment, the employer of the author of the work will be the first owner of the copyright.
Ruling of the Superior Court
On March 15, 2012, the Court recognized that the series Passe-Partout is an original work pursuant to the Act and that Lachance is one of the authors of the work because he, among other things, participated in the creation of the series, was the author of the concept and created the names of the characters. The Court found that the series is a “collective” work comprising different collaborators including writers, educators, directors, composers and puppet, costume and décor designers. However, the Court ruled that Lachance, as an employee of the Ministry of Education, could not be entitled to any copyright ownership in the work. Although he received professional latitude, Lachance remained subordinated to his supervisor who imposed the general structure of his employment, gave him annual evaluations, and he was also a salaried employee. For these reasons, Lachance was not entitled to royalties.
On appeal, Lachance alleged that subsection 13(3) of the Act had to be interpreted restrictively because it is an exception to the general rule found at subsection 13(1) of the Act, which provides that the author of a work is the first owner of the copyright in that work.
The Court of Appeal held that the trial judge correctly applied the application criteria of subsection 13(3) of the Act, reiterating that the employer is the copyright owner when the following 3 conditions are met:
- the work is created in the context of employment;
- the employee created the work in the course of his employment; and
- there is no contractual agreement to the contrary.
Further, Lachance conceded at many occasions during his testimony that only his employer had a copyright on the work and that he had never discussed with his employer any entitlement to a right whatsoever.
Lachance’s attorney argued that, based on various sources of comparative law, certain economic rights should be recognized to an author who is also an employee in a context similar to Lachance’s. The Court of Appeal concluded that while this argument is interesting and could potentially lead to a legislative intervention, it does not hold water vis-à-vis the analysis imposed by the pertinent legislative provisions.
Finally, the Court of Appeal rejected the incidental appeal of the respondents who claimed that the trial judge erred by not granting them legal costs, and doing so without providing any reason. This appeal was rejected because the intervener, Télé-Québec, had covered all litigation related costs and therefore the respondents had not incurred any costs.
This case is of interest for several reasons. It reiterates the criteria for determining copyright ownership in the context of the course of employment. It also explains that the creativity of the author or the destination of the work are not relevant under section 13(3) of the Act.