• Supreme Court Partially Reverses, Partially Upholds Appeal In Robinson Curiosity Case
  • January 2, 2014
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • Cinar Corporation v. Robinson, 2013 SCC 73

    This Supreme Court copyright decision decides issues of 1) whether a substantial part of a work is reproduced; 2) the role of expert evidence in copyright infringement cases; and 3) to assess whether the trial judge committed reviewable errors in his award of damages, including disgorgement of profits, non-pecuniary damages, and punitive damages.

    In short, Robinson had sketched out a story and characters for a children’s show called Robinson Curiosité. He shopped the idea to various people and companies but the show was never made. Years later the Cinar Corporation, one of the companies who had previously seen the concept, broadcast a children’s show called Robinson Sucroë, and this was found to be an infringing work.

    The Supreme Court describes the two works as similar, stating that “[l]ike Curiosity, Sucroë featuresa bearded, Robinson Crusoe-inspired protagonistwho wears glasses and a straw hat. In both works,the protagonist lives on an island and interacts with other characters. There are however notable differences between the works. Many of the“side-kicks” in Curiosity are animals, whereas in Sucroë they are predominantly humans. Also, Sucroë, unlike Curiosity, features a bandof marauding pirates as “villains”.”

    The Supreme Court agreed with the trial judge’s approach for determining there was an infringement of a substantial portion of the work. The use of the expert testimony was considered to be reasonable in the circumstance. Personal liability on the part of some of the defendants but not others was upheld.

    The Supreme Court overturned the Court of Appeal and ordered a disgorgement of the profits from the soundtrack that accompanied the TV show. There was no finding that the soundtrack could have been commercialized as a separate product if Curiosity had not been infringed in the first place. The soundtrack was only commercialized as a component of the television show Sucroë, which was itself created by copying a substantial part of Robinson’s work.

    The decision to apply the Andrews cap to non- pecuniary damages was also overturned. The Andrews cap covers non-pecuniary losses that can be recovered following catastrophic bodily injury. In this case, the shock and depression arose from a material injury and not a breach of the body’s physical integrity. The Supreme Court viewed the situation to be similar to defamation, and restored the trial judge’s $400,000 award for non-pecuniary damages.

    The award of punitive damages was originally set at $1,000,000, reduced to $250,000 on appeal, and now increased to $500,000 by the Supreme Court. This amount was then apportioned between the parties, as it was found that punitive damages could not be awarded on a solidary, or joint and several, basis.

    The Appeal judgment was otherwise upheld.

    Please see also the Québec Superior Court decision, and the Québec Court of Appeal decision.