Who’s Got The Look? Pelchat c Zone 3 Inc. et al.

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For reasons which elude me, the Quebec courts get all the interesting entertainment law disputes in Canada (see also: Robinson v Films Cinar Inc., for which we anxiously await the Supreme Court of Canada’s decision). Case in point: Pelchat c. Zone 3 inc., 2013 QCCS 78. (Full disclosure: Heenan Blaikie acted for the defendants in this matter.) (Fuller disclosure: because the decision is in French, and my French-language reading skills are rudimentary (at best), my description of the court’s reasons might be a bit off – corrections of my translations and descriptions are most welcome. In addition to struggling through parts of the decision on my own, I have relied on the summaries provided by others, such as Sarah D. Pinsonnault.)

In this recent decision of the Quebec Superior Court, the plaintiff, a Mr. Pelchat, asserted that the defendants had infringed copyright in the plaintiff’s concept/format/idea for a television series based on “fashion”, “beauty transformations” or “makeovers”. Beginning in the late 1980s, Mr. Pelchat had created and appeared in a series of television programs entitled “Look”. That television series was discontinued, though the plaintiff continued to make television appearances on other shows, usually speaking as an authority about matters relating to beauty and fashion.

Beginning in 2002, the defendants produced a “makeover” television series entitled “Métamorphose”, a show which was aired until 2008. In 2005, the plaintiff contacted some of the defendants and asserted that “Métamorphose” infringed his copyright in “Look”. There was no assertion that “Métamorphose” contained any footage from “Look”, rather the plaintiff was basing his action on the notion that the more recent show had copied certain “elements” of his earlier show.

Entertainment lawyers and copyright lawyers will at this point begin to get a hint of where this is going: this raises the question of the extent to which a “concept” or “format” for an audio-visual project is protected or protectible by means of copyright law. Quebec courts are a hotbed for this sort of analysis in Canadian law: cases such as Arbique v Gabriele ([1998] AC No. 3794 (QSC), aff’d [2003] JQ No. 85 (QCA)), Productions Avanti Cine-Video c. Favreau ((1999), 1 CPR (4th) 129 (QCA)) and Cummings v Canwest (2005 CanLII 17671 (QCCS), aff’d 2007 QCCA 338) all address the matter. The decision in Pelchat is consistent with the decisions in those earlier cases.

The position of the defendants in Pelchat was relatively straight-forward: the plaintiff could claim no copyright in the “idea” of a show about fashion, beauty and/or make-overs; and to the extent, if any, they had “copied” anything from the plaintiff’s shows, it was not expression protected by copyright. The court agreed: in comparing the “overall expression” of the two shows, using the perspective of the “ordinary, reasonable person to whom the work is directed”, there were insufficient commonalities to ground a finding that the defendants had copied a substantial part of a protected work. In coming to that conclusion, the court assessed matters such as “target audience, specific themes and their development, structure, dialogue, ambiance, settings/stages, rhythm, sequences, characters”, and found that the only real similarity between the two shows was a shared concern with the notions of beauty and fashion; even the concept of make-overs/transformations was handled very differently as between the two shows.  Whereas the “Look” shows focused on glamour and sponsors, giving the actual “make-over” relatively little attention, “Métamorphose” devoted its attention almost exclusively to the make-over process itself, and focused on the particular individual who was the subject of the make-over. In a rather nice turn of phrase, Justice Payette observed (echoing an observation made in Cummings) that when he compared the shows it was not that he was looking at two horses of a different colour, he wasn’t even looking at two horses (see para. 172 of the Pelchat decision).

In addition to the lack of substantial similarity between the two shows (because of a lack of protectible expression on the part of the plaintiff), the court also concluded that the defendants had independently created “Métamorphose” and had not even seen “Look” – hence there was no “copying” in two senses. The decision is also noteworthy for its treatment of the plaintiff’s and defendant’s expert witnesses: the court held that no expert evidence was required to enable the court to compare the two shows (except on the narrow point of how shows like “Look” and ”Métamorphose” would be “programmed” by a broadcaster in an effort to attract audiences).

In short, then, the plaintiff was not able to succeed because the elements of his show in which he claimed copyright and which he claimed had been copied by the defendants were not capable of being protected by copyright. Only if the ambit of copyright were expanded so broadly as to include nebulous “ideas” and “concepts” would it have assisted the plaintiff.

For those interested in further details on the concepts discussed in this post, see my earlier articles “‘I’ve Got This Great Idea for a Show’ – Copyright Protection for Television Show and Motion Picture Concepts and Proposals” (17 IPJ 189 (2004)) and “Sweating the Details: Clarifying Protection for Film and TV Concepts and Formats” (OBA Entertainment, Media and Communications Law Section Newsletter, vol. 19, no. 2 (February 2010)).

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