The much-anticipated appeal decision in Pyrrha Design Inc. v. Plum and Posey Inc., 2022 FCA 7, gives strength to the principle that “the simpler a copyrighted work is, the more exact must be the copying in order to constitute infringement.” In dismissing the appeal of the Federal Court’s decision in Pyrrha Design Inc. v. Plum and Posey Inc., 2019 FC 129, (per Phelan, J.) the Federal Court of Appeal found no palpable and overriding errors in the lower court’s reasoning and determination that the Respondent, Plum and Posey, did not infringe any copyright the Appellant, Pyrrha, had in its jewelry designs. Both parties created similarly designed jewelry using antique wax seal impressions. The imagery on the seals used by each party was in the public domain, as was the “lost wax” casting method employed by the parties to create their products.

Of interest, in reviewing the Federal Court’s infringement analysis, the Appellate judges found no error in Justice Phelan using a two-step process to determine whether a “substantial similarity” existed between the works at issue, while taking an overall “holistic-qualitative” approach to determine the issue as outlined by the Supreme Court in Cinar Corporation v. Robinson, 2013 SCC 73. The two-step process adopted below by Justice Phelan in Pyrrha first considered “all the similarities” between the works, and then “determined whether those similarities represented a substantial portion of the author’s skill and judgment”.

In Cinar, the Supreme Court recognized that a U.S.-style “abstraction-filtration-comparison” approach may be useful to determine whether a “substantial part” was copied in the context of some works, for example, computer programs; however, they found such approach was reductive. Instead, the Supreme Court advocated for a “qualitative” and “holistic” approach that did not look at isolated passages (or aspects) of a work, but rather at the two works as a whole. Decisions released after Cinar suggested Courts were treating any approach to “substantial similarity” that incorporated an element of “abstraction” as distinct and separate from one that was “holistic”. In Pyrrha, Justice Phelan specifically acknowledged such divergence between the “less holistic” approach taken in earlier cases and that taken in Cinar, then noted that the “holistic and qualitative approach allows for non-original elements to form part of the substantial part of an author’s skill and judgment where the specific combination of those elements has been copied” [emphasis added]. On appeal, the Court’s finding no error in an approach that compared the similarities of the works at issue before abstracting what was “original” about the plaintiff’s work (and thus capable of being infringed), and asking if that part of the work was copied, could suggest that the “holistic-qualitative” and “abstraction-filtration-comparison” approaches are not necessarily opposed and that it is not incorrect to incorporate some element of abstraction and filtration, before making a further comparison to determine “substantial similarity” within the context of an overall holistic approach.

In that respect, the scope of protection afforded by the Courts to Pyrrha’s jewelry is also of note. The Federal Court of Appeal found no palpable and overriding error in the lower Court’s conclusion that Pyrrha’s designs were relatively simple copyrighted works and should be afforded a low degree of protection. Many elements of Pyrrha’s jewelry were found to be in the public domain (e.g., the imagery in the antique wax seals and the casting method). Moreover, the evidence showed Pyrrha did not create or modify the imagery in the wax seals used to create the jewelry. Consequently, the scope of copyright protection was limited to only those creative elements produced by Pyrrha, namely particular borders and the specific way oxidation and polishing were used in each design, which the Federal Court found was a “fairly simple mechanical production”. Having found that the designs were relatively simple works, the Appellate judges held that the Trial Judge was not in error to afford the works a limited ambit of copyright protection. As copyright protects only expression—and not ideas, concepts or methods—Pyrrha could not claim copyright in the method used to cast the metal jewelry or in the concept of creating jewelry from wax seals.

On the infringement analysis, the Federal Court of Appeal further held that the Federal Court stated and applied the appropriate test for copyright infringement, which the Courts agreed required two elements: (1) similarity between the works; and (2) a “causal connection” showing the defendant copied the plaintiff’s works (and which can be inferred based on similarity in the works and the defendant’s access to the plaintiff’s work). In Pyrrha (2022), the Federal Court of Appeal found no error in the lower Court’s approach that considered “similarity’ first. Moreover, there was no error in the Court’s restricting its consideration of “similarity” to the original elements in Pyrrha’s designs, which the Federal Court found were the borders and specific way oxidation and polishing were used in each design in combination with the rest of the features of the specific piece (i.e., not any work or method taken from the public domain), and concluding that, given this limited scope of protection for Pyrrha’s works, the parties’ works were not similar. As there was no similarity, it was also not an error for the Federal Court to conclude that it was not necessary to consider whether Pyrrha’s designs were the “source” of Plum and Posey’s designs, notwithstanding evidence of access.

For a full summary of the trial decision, click here.