CHAPTER 6: Artistic Works Selected Definitions

Artistic Works in General

Cuisenaire v. South West Imports Ltd.

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  Plaintiff created rods of different sizes and colours for the purpose of teaching arithmetic to children.
  
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    Claimed protection as original productions in the scientific field under the general definition under:
    
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      Every original literary, dramatic, musical and artistic work
      
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      in s. 2 “artistic works”
      
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      works of “artistic craftsmanship”.
      
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    All rejected.
    
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  The rods are physically littler more than tools or counters to be used for a particular purpose.
  
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  Never intended primarily as an article regarded as artistic or beautiful in itself even if the artistic requirements requires here are not too great.
  
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  Originality in size, shape, selection and arrangement.
  
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    It is, however, the artistic work itself which is entitled to protection and not the idea behind it.
    
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  Plaintiff’s rods may have a certain attraction to children, but that would be a very secondary purpose.
  

DRG Inc. v. Datafile

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  Application brought to expunge the respondent’s registration of copyright as artistic works in two subjects comprising colour-coded file labels as follows:
  
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    A series of colour coded numeric labels composing the numbers 0-9
    
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    A series of colour coded numeric labels comprising the letters of the alphabet from A-Z
    
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  Grounds for expungement:
  
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    The design was not a proper subject matter for copyright because
    
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      it lacked the characteristics of an artistic work
      
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      it was essentially a functional tool
      
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    The work was not sufficiently original because it did not constitute a substantial modification of the pre-existing art.
    
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  Colours followed the rainbow; sequenced twice for alphabet, light then dark, etc.
  
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  Criteria:
  
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    Is the work in question a work of art?
    
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    Did the artist have a conscious intention to create a work of art?
    
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    Would a substantial section of the public genuinely admire and value the thing for its appearance and get intellectual or emotional pleasure from it?
    
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  Again look to s 3(1), irrespective of artistic quality
  
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  Argued it was an engravings, “other similar works”.
  
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  Held that it was an artistic work for purposes of copyright and no higher standard of originality is required than the case of literary copyright from University of London Press, Ltd. v. University Tutorial Press, Ltd.
  
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    In this case, it’s not the folders, or the labels for which the copyright exists, it’s the graphic design itself.
    
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    Not the system that is being protected, just the specific design of it.
    
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  “The simpler the copyrighted work is, the more exact the copying must be in order to constitute infringement”
  
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  Compared the labels to the flash cards in Cuisenaire.
  

Lifestyle Homes Ltd. v. Randall Homes Ltd.

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  Copyright is different than patents and industrial designs.
  
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  To be entitled to the protection envisaged by the Act, two things are required:
  
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    An original expression of thought, and
    
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    An attempt to convey “beauty”.
    
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  The author can borrow an idea and take inspiration from others so long as it is ultimately an original expression of thought.
  
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  To interpret the Act properly, the tribunal should not attempt to exercise a personal aesthetic judgment to consider the intent of the creator and its result.
  
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  Originality does not necessarily mean that it is a brand new idea or that it is being presented for the first time.
  

Artistic Craftsmanship

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  Requires an element of artistic-ness, or a qualitative factor, in order to gain copyright protection.
  
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  In Canada this continues to await determination by the SCC.
  
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  In DRG Inc. v. Datafile:
  
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    Artistic-ness is necessary for subject matter within the category of artistic craftsmanship but:
    
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    expressly forebears from stating whether that must be determined by the courts for works of craftsmanship and architecture
    
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    Notes, that the text of the Canadian Copyright Act mirrors that of the 1911 Act of the UK, where jurisprudence has seemed to indicate that such is required.
    
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    notes the Canadian decision of Hay & Hay Construction Co. v. Sloan to have accepted this, but to have struggled to find an appropriate test and
    
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    comments that even if works of craftsmanship and architecture must be measured against some test of artistic-ness, as set out in the Hensher, Merlet or Hay cases) it would not apply to artistic works outside of craftsmanship or architecture.
    

George Henser Limited v. Restawile Upholstery (Lancs) Limited

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  Focus now is on the meaning to be given to the expression “craftsmanship” in the specified or enumerated category of “artistic craftsmanship”.
  
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  Must be manifest that to qualify as a work of artistic craftsmanship a work must at least be a work of craftsmanship, but it must not only be that, it must have the added character of being artistic.
  
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  “Work of artistic craftsmanship” must be construed as a whole.
  
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  Misleading to ask, first, if this is a work produced by a craftsman, and secondly, is it a work of art?
  
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    More pertinent to ask, is this the work of one who was in this respect an artist-craftsman?
    
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      The artistic merit would then be irrelevant.
      
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    “Intent of the creator and its result” which will determine that the work is one of artistic craftsmanship.
    

Architectural Works

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  Used to be that designs for houses/cabins/etc. had to have some sort of panache, flair, distinctiveness, etc.
  
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    Finding panache or any one of the synonyms should no longer be required.
    
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    Designs of any sort of building, even low-cost mass-produced homes, and products of landscape architecture, such as garden or golf course layouts are protectable.
    

Hay and Hay Construction v. Sloan

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  Plaintiff had designed Belaire, a residential house on a lot the corporate plaintiff was to sell.
  
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  Rather conventional disposition of the available space but used to the best advantage by making an otherwise undistinguished ground plan into a split level house.
  
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  Exterior had an attractive cottage-roof and a very attractive disposition of windows, doors, and treatment of exterior building material.
  
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  Defendant tried to get permission to copy Belaire on a different lot, permission was refused, but bought the other lot anyway and put up a house almost exactly the same as Belaire.
  
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  Minor changes were made to Belaire, and those were done to the defendant’s house too during construction.
  
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  Defendant said that for such a small house, must use materials and design in a certain way, therefore no copyright was possible.
  
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  Belaire was quite different from anything an expert witness, land surveyor, had seen before.
  
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    Many distinctive features.
    
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    6 architects would have all made a different-looking front facade.
    
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  Belaire was found to have artistic character and design within the meaning of the Copyright Act - artistic work.
  
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  None of the design elements were novel, but altogether it was enough.
  

Other Specified or Numerated Categories

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  Definition of photograph
  
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    January 1994 NAFTA, any work expressed by any process analogous to photography (therefore including digital photography).
    
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  Engravings
  
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    Found in DRG Inc. v. Datafile to include the designs on file labels.
    
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  Paintings
  
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    Found to potentially include body painting and tattooing.
    
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    Should there be a distinction between makeup and a tattoo? (temporary or fixed?)
    
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    Clowns would frequently put makeup on in the same pattern, would a drawing or painting be required to ensure copyright?
    

Netupsky v. Dominion Bridge Co. Ltd.

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  Pre-1998 case illustrates how a three-dimensional building construction can constitute a copyright infringement by reference.
  
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    Not to architectural work, but to categories of drawings and plans.
    
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    At the time, plans were protected as a literary work.
    
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  Claimed copyright infringement in design plans for a distinctive A-shape frame design for football stadium ice arena complex in Ottawa.
  
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  The frame had a dual purpose of housing the ice arena and supporting a cantilever roof covering the seating area stadium.
  
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  At trial no infringement was found because the artistic character or shape remained the same.
  
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    Only the method of construction used to bring about the same shape has been changed and that, in any event, the contract entered into by the plaintiffs impliedly allowed such changes.
    
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  At appeal, the court considered whether there was a copyright and infringement therefor, not in the structure itself as an architectural work of art, but in the plaintiffs’ design plans of the structure as drawings or plans.
  
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  Copyright subsists not in the building itself, but in the artistic character or design thereof.
  
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  Therefore, an architect obtains art in his plans as literary works in view of the fact that literary works are defined as including plans, and in his sketches and drawings as artistic works in view of the fact that artistic works are defined as including drawings.
  
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  Court found the plaintiffs’ plans to have been substantially reproduced in later drawings or plans made by the defendant.
  
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  Court concluded that copyright infringement would be excluded only if the plans used by the defendant cannot be considered to be in the nature of architectural drawings or plans, of any architectural work of art.
  
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  Need to know more about this case, SCC said that the contract allowed for the changes, even though the building was clearly based off of the plaintiff’s work.
  

Preston v. 20th Century Fox Canada Limited

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  Blurs the lines between two-dimensional artistic drawings and a literary description.
  
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  Plaintiff combined ownership and infringement of his literary copyright in a manuscript entitled Space Pets and a character in that script described as an Ewok.
  
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  Name Ewok is never said in the film, but 40 times in the script, and in the credits.
  
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  If there is to be copyright in a name, it has to identify a well-known character copyright, and associated character must be recognised.
  
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    Character must be sufficiently clearly delineated in the work subject to copyright that it become widely known and recognised.
    
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  Characters were not widely known, not many had heard of them, or read the script. 
  
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  Clearly it was Star Wars that made the Ewoks famous.
  
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    Characters in works can have copyright protection once they meet the criteria from Preston.
    

LB (Plastics) Limited v. Swish Products Limited

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  Plaintiffs manufactured sets of plastic drawers for the furniture industry.
  
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  Drawers were in component parts for assembly by the buyer.
  
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  Defendants made similar sets, and there was evidence that they had some desire to establish interchangeability between its own and those of the plaintiffs.
  
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  No evidence that the defendants had seen the drawings, it was the manufactured goods that were copied.
  
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  Three dimensional copy of a three dimensional product, thereby constitution an infringement of the two-dimensional drawing of that product.
  
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  Suggestion that the plaintiffs had made the 3d drawers and component parts first, then made the drawings.
  
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    This presented the issue whether the drawings could be said to be original.
    
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  Can there be copyright in a copy?
  
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  Even if the 3D models had been made first, and then drawings, J is of opinion they would qualify as original works.
  
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  Absurd that by making a drawing a man should get protection extending for his life plus 50 years, whereas under a registered design or patent he can only get 15 or 16 years.
  
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  Copyright isn’t effective against anyone who produces something independently. 
  
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    It is only effective to stop third parties from helping themselves to too liberal a portion of another man’s skill and labour for their own exploitation.
    
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  Has not been proven that the defendants copied a drawer made in accordance with the relevant drawing.
  
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    No copyright infringement then.
    
    
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  Comparing Hensher and LB Plastics it is apparent that a copyright exclusivity can be far more readily established in the 3D products themselves if there is a drawing.
  

Bayliner Marine Corporation v. Doral Boats Ltd.

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  Plaintiff manufactured boats.
  
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  Claimed copyright infringement against the defendant for manufacturing boats by stripping down the plaintiff’s boats, using the hull and superstructure sections to make a 3D rendering (a plug) and then making a mould for its own boats.
  
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  This saved the defendant from engaging in engineering design of its boats.
  
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  Plaintiff made its boats by preparing design drawings of the hull and superstructure, then rendering, then plug, a mould.
  
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    Defendant could make same boats way cheaper.
    
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  Issue here:
  
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    The scope of copyright protection for 3D copying from a 3D object for which there existed antecedent drawings protected by copyright.
    
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  By looking at the two boats it’s obvious the defendant’s was made from the drawing, despite their use of an intermediary.
  

British Leyland 

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  Dissent
  
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  Majority of the HoL found copyright in design drawings of automotive spare parts to be infringed by the reverse engineering.
  
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  BUT the majority declared that automobile owners had a right to keep their cars in good repair, and they were entitled to a free market in spare parts as a result.
  
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    Government never intended to have copyright law prevent the reproduction of a functional object depicted in a drawing.
    
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    “Reproducing in s 3(5) should not be given the extended meaning of indirect copying in cases which the mechanical drawing or blueprint is of a purely functional object.
    
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    “You may prolong the life of a licensed article but you must not make a new one under the cover of repair"
    

Spiro-Flex Industries Ltd. v. Progressive Sealing Inc.

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  Nothing in the speeches in British Leyland that would diminish the force of King Features as an authority upon which to rely in this case as in Bayliner.
  
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  “the plain words of the Act (“in any material form”) get rid of any difficulty there might otherwise have been in treating a copy in three dimensions as an infringement of copyright in a sketch in two dimensions.
  

Bayliner Marine Corporation v. Doral Boats. Ltd

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  Discusses s. 46 of the Copyright Act which was in force until replaced by s. 64 in 1988.
  
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  Act doesn’t apply to designs capable of being registered under the Industrial Designs Act, except designs that though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process.
  
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  General rules under the IDA may be made for determining the conditions under which a design shall be deemed to be used for such purposes as aforesaid.
  
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  Page 227 for the IDA stuff.
  
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  Could parliament have intended for someone to gain 10 years’ protection after registering under IDA, but 50 years if they forget and have protection under copyright?
  
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    No.
    
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  Only question is whether the subject-matter of the claimed copyright is a design within the meaning of the IDA.
  
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  If it is, it’s subject of s. 46 of the Copyright Act as something capable of being registered under the IDA.
  

s 64 of the Copyright Amendment Act

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  Article
  
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    means any thing that is made by hand, tool or machine
    
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  Design
  
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    means features of shaper, configuration, pattern or ornament and any combination of those features that, in a finished articles, apple to and are judged solely by the eye
    
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  Useful article
  
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    means an article that has a utilitarian function and includes a model of any such article
    
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  Utilitarian function
  
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    in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter 
    
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  Read s(2) on page 230.
  
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    Has exceptions.
    

Magasins Greenberg Ltee v. Import-Export Rene Derhy 

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  After quoting s. 64(2), the respondent argued that contrary to the arguments of the applicants, this section does not have the effect of denying a design covered by these provisions the status of a work which can be protected by the Copyright Act within the meaning of s. 2 of the Act.
  
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  s 64(2) is only a defence which may be raised in a copyright infringement proceeding.
  
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    Section only indicates the limits of the protection conferred by the copyright without thereby denying the existence of that copyright.
    
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  The holder of the copyright to this design must have authorised, first, reproduction of the applied design in an article reproduced in a quantity of more than fifty, or second, in the case of a plate, engraving or cast, the design, again with the authorisation of the holder of the copyright., must be used for producing more than fifty useful articles.
  

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