In copyright law, people generally operate from the assumption that anything someone has created is protected by copyright. That is, if someone has made a dramatic, artistic, literary or musical work, as defined in the Copyright Act, and did not copy the work from someone else, that such person’s work is protected by copyright. However, contrary to popular belief, copyright does not automatically protect a work just because you made it and did not copy it from someone else. The work must be original. This point was confirmed much to the disappointment of amateur television producer Karl Cummings.
Cummings claimed that Global TV had poached his idea for a musical performance type television program when it produced the Global television show “Popstars”. Popstars first aired in the Spring of 2001. Prior to the creation of Popstars, Cummings had submitted his guideline about a television show concept to the President of Global.
Cummings’ guideline envisioned a television show called “Dreams Come True”. The guideline was quite short. The court only reproduced what it called the relevant portions of the guideline comprising a page and half in its judgment. The guideline describes the nature of the television show, its goal, objectives, participants, publicity arrangements, preparations, legalities, and auditioning rights over the page and a half. By way of example, the guideline says this under “Objectives” and “Legalities”:
- To nourish and support an artist’s ambition to go further and to go on tour
- To obtain support from the Canadian recording industry
- To inspire and encourage viewers who make music themselves to appear on the show; and
- To hold a no-losers-no-winners contest where everybody competes and performs; it would be not only just for the enjoyment of it, but it would also provide an incentive for the artists to hone their musicianship.
Details concerning copy rights (sic); The material concerning music; Writing of the song and the recording of the material; contract of the artists; Promotion of show and artists and possible record.
Cummings sent a copy of his guideline to Glen O’Farrell, then president of Global, around April, 1997. Global sent a letter to Cummings saying that it would review all projects from independent producers and would communicate its evaluations. Cummings received no further word from Global.
The next relevant event occurred when Cummings found out that Global had broadcast Popstars 1 in 2001 and Popstars 2 in 2002. Cummings alleged that Global had infringed his copyright in the guideline, because the Popstars concept was virtually identical or at least very similar to his concept for Dreams Come True. The defendant took the opposite position, arguing that the Popstars shows were significantly distinguishable from Cummings’ Dreams Come True concept. Further, the defendants argued that Cumming’s guideline was not protected by copyright because it lacked sufficient originality. (At this point, we will focus on the originality part of the judicial determination and not on the differences and similarities between the two show concepts.)
The court found that Cummings’ guideline did not contain sufficient originality to warrant copyright protection. In reaching its conclusion, the court stated that the guideline contained precious little useful detail concerning the actual contents of the proposed television show and did not describe the concept in any meaningful way. The court classified Cummings’ guideline as one stage short of a television concept. Rather, the guideline appeared more like a pre-concept that did not set out a sufficiently detailed explanation of anything particularly unique. The court ruled that Cummings’ barebones outline of a concept did not contain sufficient originality to warrant any protection under the Copyright Act. The guideline was not an original work. Rather, the guideline was so minimalist and broad brush, and so similar to any Sunday-morning-amateur-hour format of years gone by, that the court could not find any particular skill and judgment at work. Cummings’ guideline was nothing more than a commonplace arrangement of non-copyright material. The Quebec Superior Court granted Global’s motion to dismiss the action. Cummings’ appeals to the Quebec Court of Appeal and the Supreme Court of Canada were dismissed.
The Cummings case represents a useful reminder that no lawyer should assume that a work is protected by copyright. Absent a sufficient degree of originality, no copyright protection arises; the work must be original. This is a requirement of section 5 of the Copyright Act. Case law has elaborated on what “originality” means. The leading case on the concept of originality is CCH Canadian Ltd. v. Law Society of Upper Canada. In CCH the Supreme Court of Canada held that it is a condition of the Act that in order for a work to be sufficiently original to obtain copyright protection, the work must be more than simply created but does not require a quality of uniqueness or novelty. Rather, copyright protection will arise, where the author has exercised skill and judgment in the expression of an idea. Skill requires that one use his acquired and developed skill, abilities, or knowledge to produce the work. Judgment requires a person to carefully consider how to express his idea in a work. Such exercise of skill and judgment cannot in any case be a simple mechanical or trivial exercise.
In light of the decision in Cummings, it is especially important for lawyers, against whose clients a claim of copyright infringement has been made, to determine whether in actuality any copyright existed. As shown in Cummings, proper research and correct pleadings can stop a copyright infringement action before it starts.
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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information. You can reach Ryan at email@example.com and (905) 287-2215.