By Richard Stobbe

Is there copyright in the setting of a Netflix series?

It’s time for a dose of stereotypical Canadian culture, and you can’t do much better than another copyright battle over Anne of Green Gables!  With Sullivan v. Northwood Media Inc., 2019 ONSC 9 (CanLII) we can add to the  long list of cases surrounding the fictional character Anne. This newest case deals with a copyright claim by Sullivan Entertainment against the producers of a CBC / Netflix version entitled “ANNE with an E” (2017).

First, a newsflash: The Anne of Green Gables books were written by Lucy Maud Montgomery and originally published beginning in 1908.

Sullivan, of course, is known as the producer of a popular television version of the Anne of Green Gables novels, starting with “Anne of Green Gables” (1985), the copyright in which is registered under Canadian Copyright Registration No. 358612.

Enter the latest incarnation of the AGG story, a CBC series produced by Northwood Media, now streaming on Netflix.

Sullivan alleges that Northwood, the producer of the latest Netflix version, has copied certain elements that were created by Sullivan in its TV series from the 1980s, elements that were not in the original novels.  This copyright claim forces an examination of the scope or range of copying that is permitted around setting, plot concepts, imagery, and production or design elements.

Wait… are plot concepts and settings even protectable?  In copyright law, we know that ideas are not, on their own, protectable; copyright protects the expression of ideas.  Here, Sullivan as the owner of the copyright in its television production alleges that the Netflix series infringes copyright by copying scenes, not literally but through non-literal copying of a substantial part of the original protected work.

For example, Sullivan alleges that the Netflix version copies settings or conceptual elements such as:

• the decision to set the story in the late 1890s (the choice made in the Sullivan version), as opposed to the 1870s (the choice made by the original author in the Anne of Green Gables novel).
• the use of steam trains, replicated from a scene in one of the Sullivan episodes (apparently steam trains would not have been historically accurate in a 1870s setting);
• copying the concept and scene of a class spelling bee, to establish the rivalry between Anne Shirley and Gilbert Blythe;
• depictions and staging of scenes such as Anne’s life with the Hammond family or Matthew Cuthbert passing by the hose of Mrs. Lynde’s on his way to the train station to pick up Anne.

The allegations are not that the scenes are literally cut-and-paste from the original, but that the copying of settings, concepts and staging is copying of “a substantial part” of the original for the purposes of establishing copyright infringement.

In the words of the court in Cinar Corporation v. Robinson, 2013 SCC 73, copyright can protect “a feature or combination of features of the work, abstracted from it rather than forming a discrete part…. [T]he original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original.”

(See our earlier article:  Supreme Court on Copyright Infringement & Protection of Ideas )

The preliminary decision in Sullivan v. Northwood Media Inc. is about a pre-trial procedure related to document discovery, and once it goes to trial, the outcome will be interesting to see. This case is a series worth watching.

Calgary – 07:00 MT

By Richard Stobbe

An obituary aggregation site – yes, there is such a thing – was in the business of reposting obituaries, both text and photos, taken from the sites of Canadian funeral homes and newspapers.  This database of obituaries was a way to attract visitors who could then buy flowers and ‘virtual candles’ on the same page as the obituary, to generate profits.

Not surprisingly, someone complained.

Thomson v. Afterlife Network Inc., 2019 FC 545 (CanLII) was a class action lawsuit against the obituary aggregation company, Afterlife, for copyright infringement, based on the unauthorized copying and publication of over a million obituaries. Shortly after the class action lawsuit was launched, the Afterlife site shut itself down.

Class action members expressed that “an obituary they had written for a family member, often accompanied by a photograph, had been posted on Afterlife’s website without their permission. The evidence of many Class Members is that they had written the obituaries in a personal way and that their discovery that the obituaries had been reproduced with the addition of sales of candles and other advertising was an emotional blow to them. In some cases, inconsistent information was added, for example, inaccurate details about the deceased or options to order flowers where the family had specifically discouraged flowers. The Class Members also describe Afterlife’s conduct, in seeking to profit from their bereavement and in conveying to the public that the families were benefiting from sales of virtual candles or other advertising, as reprehensible, outrageous and exploitative.”

The court had no trouble in establishing copyright protection for the obituaries as well as the photos.

The court also quickly concluded that Afterlife has republished this content without the permission of the original authors.

Damages need not be proven where statutory damages are invoked.  Since statutory damages (Section 38.1 of the Copyright Act) allow for not less than $500 and not more than $20,000 per infringement, the court saw that the minimum of $500 multiplied by the estimated two million separate infringements (at least one photo plus a block of text in each of the 1 million copied obituaries), would result in a minimum damage award of around $1 billion.  Seeing this as grossly disproportionate, the court awarded $10 million in statutory damages, and another $10 million in aggravated damages, which can be awarded for compensatory purposes.  Strangely, the court did not award punitive damages for this case of “obituary piracy”, that the court agreed was high-handed, reprehensible and “represents a marked departure from standards of decency”.

Although this case may be noted for its significant statutory damage award, it also deal with a moral rights claim by the original authors of the obituaries. Under Canadian copyright law, “moral rights” protect the integrity of a work and are engaged where the author’s honour or reputation is prejudiced by the distortion or modification of the original work, or by using the work in association with a product, service, cause or institution.

The court struggled to find a moral rights infringement, since it was given evidence of the subjective elements of the infringement (the authors expressed that they were understandably mortified that others would think that they were somehow profiting from bereavement). However, the court noted that there is both a subjective and objective aspect in order to establish infringement of moral rights. The objective element was missing here.

In the end, a $20 million damage award was granted against Afterlife.

Calgary – 07:00 MT