Motion For Summary Judgment for Breach of Copyright Dismissed
Jules Jordan Video, Inc. and Ashley Gasper v. Alain Elmaleh et al. 2009 FC 488 (Harrington, J.)

May 11, 2009

Bob H. Sotiriadis for the Plaintiffs, Jules Jordan Video, Inc. (“Jules”)
Serge Segal and Maxime Bourret for the Defendants, Elmaleh and Kaytel Video Distribution

This was a motion for summary judgment by the Defendants on the issue of whether the Plaintiff, Jules, had standing to seek an injunction for alleged breach of copyright. The Defendants plead that the other Plaintiff, Ashley Gasper, is owner of the copyrighted works, and therefore, the action by Jules should be dismissed.

Gasper is the sole officer and shareholder of Jules, a one-man company. Gasper writes, directs and produces the works which Jules creates and distributes. Gasper did not specifically set out his relationship with Jules. Gasper is shown on the Canadian Copyright Register and the U.S. Copyright Office as the owner of the works at issue.

The test to be applied by a motions judge in a summary judgment motion under Rule 213 of the Federal Court Rules is “whether the case is so doubtful that it ‘does not deserve consideration by the trier of fact at a future trial’”.

The Court applied the principle that the fact that a copyright owner is shown on the Canadian Register creates a rebuttable presumption in the owner’s favour. The Court held that there was insufficient evidence to allow the Court to conclude on the relationship between Gasper and Jules. The relationship between Gasper and Jules could be characterized in a number of ways, whether as one of employment, joint venture, principal and agent, assignor and assignee, or licensor or licensee either on an exclusive or non-exclusive basis. Section 36 of the Copyright Act permits an assignor to be named as a co-plaintiff. There was no information before the Court with respect to the financial arrangement between the Plaintiffs and how income was distributed. The Court held that standing to sue is not a question to be answered by simply looking at the Copyright Register.

The Court found that this was not a case of “no genuine issue to be tried as to the standing” of the Plaintiff, and dismissed the motion for summary judgment.

By: Teresa Cheung, Wires Jolley LLP