attempt to claim copyright protection for a talent show

ATTEMPT TO CLAIM COPYRIGHT PROTECTION FOR A TALENT SHOW PRODUCTION
GUIDELINE GOES IN A POP
Laurent Carrière and Lorraine Laquerre*
LEGER ROBIC RICHARD, L.L.P.
Lawyers, Patent and Trademark Agents
Centre CDP Capital
1001 Square-Victoria- Bloc E – 8th Floor
Montreal, Quebec, Canada H2Z 2B7
Tel. (514) 987 6242 - Fax (514) 845 7874
[email protected] - www.robic.ca
In Cummings v. Canwest Global Broadcasting Inc.(2007 QCCA 338; 2007-03-08), the
Quebec Court of Appeal has upheld a judgement rendered by the Superior Court of
Quebec allowing a motion to dismiss in a copyright infringement case.
The Plaintiff, Karl Cummings, brought an action for copyright infringement under the
Copyright Act, as well as for damages under the Civil Code of Quebec, claiming
that Canwest Global Broadcasting Inc. had infringed his copyright in a concept for a
television programme entitled Dreams Come True by producing two seasons of
Popstars, another singing competition reality TV show.
Canwest, following an examination on discovery of Cummings, brought a motion to
dismiss under article 75.1 of the Quebec Code of Civil Procedure, claiming the
action was frivolous and clearly unfounded as the work for which copyright
protection was sought could not be protected under Canadian copyright law as it
lacked originality. Alternatively, they claimed the works were too different for
infringement to have occurred.
Under the Canadian Copyright Act, for a work to be original, it must be more than a
mere copy of another work but it does not require inventive originality in the sense of
being novel or unique. The exercise of skill and judgement is what is needed.
The Superior Court, after agreeing that the motion to dismiss was an appropriate
procedural avenue in a copyright infringement case, compared Cumming’s fourpages guideline for Dreams Come True, which had previously been transmitted to
the president of Global for consideration, to a videocassette of two episodes of
Popstars submitted by the Plaintiff.
© CIPS, 2007.
Lawyer and trade-mark agent, Laurent Carrière, is a senior partner with LEGER ROBIC
RICHARD, L.L.P., a multidisciplinary firm of lawyers, and patent and trademark agents. Lorraine
Laquerre is an articling student with the firm. Published in World Copyright Law Report.
Publication 328.032.
*
The guideline for Dreams Come True described the concept of the television
programme as being a “no-losers-no-winners contest where everybody competes
and performs”. The contest was aimed at “all musicians, singers, composers, lyricists
and dancers of all ages, regardless of language and ethnic origin”.
The Court agreed with the Defendants that the brief description of Cumming’s
concept was fundamentally different from the Popstars series where the aim was the
creation of a girls band for the first season, and the creation of a mixed-gender band
for the second season. The programme was not a showcase for singing and dancing
but rather consisted of a docu-drama or a « docu-soap » which put more emphasis
on the actions and reactions of the people auditioning and training on actual
performances. The element of competition was also more prominent in Popstars, with
contestants being sent home every week.
Furthermore, the Court examined the guideline for the production of Dreams Come
True to see if the work could be considered original under copyright law. It came to
the conclusion “that barebones outline of a concept does not contain sufficient
originality to warrant protection under copyright”. This was justified by the fact that
the Dreams Come True outline was minimalistic and broad-brushed and that its
concept was very similar to other talent shows that had already been broadcasted.
The court also added that in this case, “it is rather the differences between the two
concepts which are striking, and not the similarities”. The motion to dismiss was thus
granted.
On appeal, the Quebec Court of Appeal confirmed copyright cases were well
suited to a motion to dismiss under 75.1 of the Quebec Code of Civil Procedure,
although these types of motions should be granted only when it is clear the action
has no reasonable chance of success and after making sure no additional evidence
could influence the case.
The Court also rejected the appellant’s argument whereby the motion to dismiss
should have been rejected because some new evidence could have been brought
before the Court at trial, stating that, even if Cummings could prove that the
inspiration for the two seasons of Popstars came from the guidelines he created,
those guidelines could still not be considered as a copyrightable work.
The Court reiterated that having an idea is not enough to obtain copyright
protection under Canadian copyright law; the idea has to be embodied in a work.
Clearly, a simple point-form general guideline, such as the production guideline for
Dreams Come True, did not require sufficient exercise of care and judgement for the
work to satisfy the originality requirement found in the Copyright Act. There was
nothing in the document that could have helped someone produce the television
programme or exploit the appellant’s idea without the help of the appellant himself.
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since 1892 to the protection and the valorization of all fields of intellectual property: patents,
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