When Florence Lucas received the hefty brown envelope on a weekday morning in late August, she resisted the temptation to open it immediately even though she knew that a 13-year long legal battle pitting a determined and resolute Montreal animator against a major studio production company was possibly about to reach its denouement.
The Montreal lawyer with Gowling Lafleur Henderson LLP instead called her client, Claude Robinson, whose “tenacity, energy and determination was indispensable to face the legal guerilla,” and waited for him. “We both jumped to the conclusion right away, and then leapt with joy,” said Lucas, who specializes in intellectual property, media and entertainment law.
Robinson, who launched in July 1996 a $2.53-million copyright-infringement lawsuit against the Cinar Corp. and other defendants claiming they stole a cartoon character he created, was awarded more than $5.2 million, including $400,000 for psychological distress, $1-million in punitive damages, and $1.5-million to cover legal fees.In a 240-page ruling, Quebec Superior Court Justice Claude Auclair held that Cinar plagiarized Robinson’s cartoon series “Les aventures de Robinson Curiosité,” which was both copyrighted and trademarked, as the basis for its television series “Robinson Sucroé.” Judge Auclair ordered the disgraced studio to cease producing or reproducing its series, stop distributing and televising it, and hand over copies and negatives of its children’s television show to Robinson.
“One must send a clear message to copyright infringers that cupidity will be punished and that they must expect simply more than a condemnation of compensatory damages without penalty if they are discovered,” said Judge Auclair. “In the case at hand, the conduct of the defendants was outrageous, premeditated, deliberate. Even during the trial, they persisted to conceal their reprehensible acts. The objective behind punitive damages is to prevent similar cases and punish these white-collar bandits in order to discourage them from repeating their ruse and sanction their scandalous, ignominious and immoral conduct.”
Three years after creating his cartoon, Robinson — through his company Les Productions Nilem Inc. — approached in December 1985 Cinar’s founders, the husband-and-wife team of Micheline Charest and Ronald Weinberg, and held discussions to promote and sell the series to the American market. Robinson gave the studio copies of his notes, offering possible scenarios and story synopses but negotiations collapsed after a couple of years when one of Robinson’s partners disagreed over their cut on profits.
On September 1995, Robinson was dismayed to see on air a children’s program entitled Robinson Sucroé that was co-produced by the defendants, and that eventually was distributed around the world . “Annoyed, hurt and curious,” Robinson launched an investigation to prove that his cartoon show was plagiarized by Cinar, all of which culminated in an eight-month trial that heard the depositions of more than 40 witnesses, over 20,000 pages of documents, four expert witnesses and the viewing of more than 53 hours of the two television shows in dispute.
Robinson, however, was fortunate in his misfortune. While the long legal battle physically and mentally took its toll on 52-year old Montrealer, he was lucky to find a lawyer who not only believed in his case but took the case pro bono. Marc-André Blanchard, formerly of Gowlings before being nominated as Qubec Superior Court judge, worked on the case for 11 years. Lucas herself came on board in 2000, and has worked on the case ever since. “He was lucky to have a law firm that believed in his case,” remarked Lucas. Even the judge pointed out that Robinson was fortunate.
“The Act has as its goal to protect artists but still they must go all the way to obtain a final ruling,” noted Judge Auclair. “Here, the economic might between the two is unequal: on one side you have giants supported by their insures and on the other side an applicant without great financial resources.
Robinson had the burden of proving that the defendants had access to his work and that there were substantial similarities between his creation and the television show co-produced by Cinar. If Robinson did so, then the defendants had to prove that their show was created independently of Robinson’s show.
After scrutinizing the evidence and concluding “without hesitation” that Robinson’s show, though it was not a completed work but in the promotional stages, was nevertheless an original creation as per the Copyright Act (Act) Judge Auclair held that there were undeniable similarities between the two shows.
“An author who hands in his work to a consultant has the right to legitimately expect that it will not be used without his authorization upon the expiration of the contract and that his documents will be given back,” said Judge Auclair. “Cinar never credibly proved that it acted on this alternative. On the contrary, Cinar conducted itself immorally and often illegally in its affairs.”
According to Lucas, the ruling, while it does not create jurisprudence, does examines the Act meticulously and exhaustively deals with wide-ranging issues from the creation of a work to the burden of proof that must be established to prove copyright infringement.
“Over the years there have been numerous rulings that dealt with the Act but rarely has there ever been a judgment that examines and analyses different aspects of the Act,” said Lucas. “This ruling conducts an exhaustive examination of jurisprudence over what qualifies as a work of creation, of copyright infringement and its burden of proof.
“It also demonstrates the need for artists to keep all of their evidence of their creation to ensure that they can eventually defend their rights. That is an important lesson.“
Pierre Lefebvre of Fasken Martineau, who represented Cinar in the case, not surprisingly has a different take on the ruling. Though still not yet not certain whether the ruling will be appealed, Lefebvre says that at first glance artists have won a major battle. But that victory is illusory, he maintains. Works of creation are built on the backs of other works, and that will be brought into question in the future thanks to the ruling.