Cinar v. Robinson: Are Derivative Works Afloat in Murky Copyright Waters?
On February 13, 2013, the Supreme Court of Canada (SCC) heard the appeal of the now (in)famous copyright case of Cinar Corporation et al. v Robinson et al. [Cinar], concerning the infringement of one Robinson castaway (Robinson Curiosité) by another (Robinson Sucroë). The case has steadily worked itself up from the Quebec trial division, with the appeal court's decision (France Animation v. Robinson, 2011 QCCA 1361, [France Animation]) now being contested before the nation's highest court. The SCC has yet to release what is sure to be a rather interesting judgment, given that and lower courts have themselves engaged in some skilful maneuvering around issues that have extended beyond the realms of copyright law.
The facts of the case are the following: the defendant Claude Robinson (the appellant in the QCCA appeal) created a set of sketches and descriptions of characters that were to be part of an erstwhile children's series titled Robinson Curiosité. In spite of registering these with the Copyright Office in 1985, forming a corporation to enable their production and engaging in various networking efforts, Curiosité never became a television series, and the corresponding corporations were dissolved. In 1995, the appellants Cinar Corp. et al. (the respondents in the QCCA appeal) created and broadcast a children's show called Robinson Sucroë, which according to Claude Robinson, was similar enough to his Curiosité to allege copyright infringement. The trial division courts and the QCCA both agreed with him, awarding him substantial damages, including compensation for extra-contractual liability, psychological injury and damages for the conduct of the appellants. The case that is currently before the SCC thus considers all these issues, and while we await a formal judgment on the matter from the apex court, the QCCA's infringement analysis around an incomplete work has raised some intriguing issues for derivative works, especially in the context of remix culture.
Both the trial court and the QCCA spent considerable ink on the infringement analysis, to determine whether Sucroë was in fact treading on the original expression captured in Curiosité, once the ownership in the work was proved to be Claude Robinson's (a summary of France Animation can be found here). In determining whether Sucroë's similarities to Curiosité were enough to infer infringement, the QCCA agreed with the trial judge that the characterization of a work as copyrightable was for the courts to decide, subject to the originality, skill and judgment criteria being met [France Animation at paras. 33-35] – echoing of course, the now immortal language of CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. Then, the QCCA emphasized that these were the only criteria necessary to determine copyrightability, especially since it was not the court's job to assess the creative quality of a work, i.e. whether it was 'good' or 'bad.' While this statement is in itself not new, it is interesting to note the QCCA's meticulous build-up to it; might it have had anything to do with the fact that Curiosité was never fully "finished?" The QCCA pointed to its incompleteness as a significant point, wishing to show perhaps that an incomplete work can still be copyrightable within the confines of the Copyright Act, R.S.C 1985, c C-42 [the Act] provided of course, that it fits the Act's definition and exhibits the CCH factors mentioned above.
To the QCCA then, the work is finished in the legal sense of the word the minute these three originality characteristics are shown, regardless of whether it may actually be completed [France Animation at 38-39]. This distinction played a key role in the substantial part doctrine analysis that it conducted, where it deemed infringement to have happened even if the substantial part of an incomplete work was found to have been present in a completed work [France Animation at paras. 74-77]. To the QCCA, it seems immaterial whether the expression of an idea may ever be whole or done; what matters, apparently, is that it is original. While its commitment to retaining the purity of the originality criteria is admirable, it does create a bit of a grey area where derivative works are concerned: where, for instance, does the original end, and the derivative begin? Obviously, in the case of a finished original work, it isn't hard to distinguish between the two, but the lines may not be as clear where the original itself is unfinished, since it might not always be easy to tell where the expression of the original work ends, and the derivative begins. This is of course, because the latter must necessarily build on distinctive elements of the former to become a stand-alone work in itself. Coupled with the fact that the Act has no real definition of the term, and Canadian law still looks to Théberge v. Galerie d'Art du Petit Champlain Inc., 2002 SCC 34to understand what a derivative work is not, it isn't hard to imagine some seriously murky waters around the issue in future litigation.
If upheld by the SCC, this aspect of the judgment could have interesting ramifications for derivative works, especially in the context of vandalism and remix culture, both of which are examples of the process of inspiration, and the expression of creative ideas in the digital age; whether an incomplete original can and should oust its completed and derivative reincarnation remains to be seen.