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A New High in Canadian Copyright Litigation?

By Howard Knopf, Esq.

It may come as no great surprise that the Supreme Court of Canada today turned down a leave to appeal application arising from a procedural ruling in a copyright case about a couple who sued a whole bunch of people for violation of s. 8 of the Charter (unreasonable search and seizure) and copyright infringement by Black's et al of their photos showing marijuana plants growing in their residence.

Here's the Court's summary:

In 2001, the Applicants Wojtanowska and Weil brought some photographs taken inside their home to the Respondent Black Photo Corporation, commonly known as Black?s, to be developed. The photographs showed marijuana plants growing in Wojtanowska and Weil?s residence. Employees of Black?s turned copies of the photographs over to police who then obtained a search warrant. Wojtanowska and Weil were arrested and charged with possession of marijuana and other related offences. The charges were later dismissed. Wojtanowska andWeil commenced a civil action against the Respondents in which they alleged that the Respondents had violated their rights guaranteed by s. 8 of the Charter, and their right to copyright in the photographs. They were ordered by the Superior Court to produce the photographs to the Respondents and to re-attend for examination for discovery. Wojtanowska and Weil refused and filed a motion for leave to appeal to the Divisional Court. The Superior Court dismissed the motion.

As the Judge below in the Ontario Superior Court noted:

[19] In the statement of claim the plaintiffs seek damages for the violation of their right to be secure against unreasonable search and seizure guaranteed by section 8 of the Charter. Justice Walters, in her judgment dated September 16, 2003, held that the police seized the photographs from Blacks Photography and thereby violated the plaintiffs? rights under section 8 of the Charter. The photos were used to obtain a search warrant. The execution of the search warrant resulted in the discovery of the marijuana plants. This resulted in the charges against the plaintiffs. Justice Walters held that the evidence obtained as a result of the execution of a search warrant was inadmissible pursuant to section 24(2) of the Charter. The charges were dismissed because the crown had no other evidence. The plaintiffs seek leave in their statement of claim to refer to the reasons for judgment of Justice Walters. The plaintiffs claim copyright in the photographs. They allege breach of their copyright against Blacks Photography by reason of their giving the photographs to the Peel police and against the Peel police by reason of their giving the photographs to the Halton police. The plaintiffs, having sued on the basis of the use of the photographs by the defendants, cannot now refuse to produce them to the defendants. The defendants can only properly assess the case against them by viewing the photographs. Mr. Neeb recognized this by undertaking to produce the photographs at the examinations for discovery contrary to the wishes and perhaps instructions of his clients.

[20] The plaintiffs are clearly very sensitive about others viewing the photographs. I can understand this as did Justice Snowie in the passage quoted above. However, they cannot both sue on the photos and refuse to produce them. The plaintiffs? position has no merit...

This was all about a procedural ruling that the Plaintiffs had to produce the photos in question on discovery. There was a whopping $12,000 cost award against them in the Ontario Superior Court. Note that the Plaintiffs had previously beaten criminal charges of possession of marijuana and other related offences arising from the turnover of the photos to the police.

All very curious and interesting. The Plaintiffs are claiming a total of $1,375,000 in damages against the various defendants, special damages in the amount of $85,694, plus GST and costs. This is almost as much as the RIAA just got against Jamie Thomas for 24 songs. Who says that Canadian copyright law can't contemplate serious damage awards?

This case isn't over. If the Plaintiffs produce the photos, they can proceed with their lawsuit.

Some people do really take their copyright very seriously.

I hope that none of the counsel involved are prone to briefer madness.

HK

Full post as published by Excess Copyright on July 09, 2009 (boomark / email).