1998 CanLII 5513 (ON CA) | Glen Gould Estate v. Stoddart Publishing Co. Ltd.

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Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA)

Date:

1998-05-06

File number:

C25822; C25823

Other citations:

39 OR (3d) 545 — 161 DLR (4th) 321 — 114 OAC 178 — 80 CPR (3d) 161 — [1998] OJ No 1894 (QL)

Citation:

Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA), <https://canlii.ca/t/6gw8>, retrieved on 2024-12-18

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Posen, Executor and Trustee of the Last Will and Testament of

Glenn Gould, deceased et al. v. Stoddart

Publishing Co. Limited et al.

Posen, Executor and Trustee of the Last Will and Testament of

Glenn Gould, deceased v. Stoddart

Publishing Co. Limited et al.* **

[Indexed as: Gould Estate v. Stoddart Publishing Co.]

39 O.R. (3d) 545

[1998] O.J. No. 1894

Docket Nos. C25822 and C25823

Court of Appeal for Ontario

Finlayson, Krever and Weiler JJ.A.

May 6, 1998

*Vous trouverez traduction fran‡aise de la d‚cision …

39 O.R. (3d) 555.

**Application for leave to appeal to the Supreme Court of

Canada dismissed with costs January 7, 1999 (Cory, Major and

Binnie JJ.). S.C.C. File No. 26782. S.C.C. Bulletin, 1999, p.

28.

Intellectual property -- Copyright -- Photographs

-- Interviews -- Appropriation of personality -- Celebrity

consenting without limitation to being photographed and being

interviewed for magazine article -- Photographer later

publishing book including photographs from interviews -- Estate

of celebrity suing photographer and book publisher for breach

of contract, misappropriation of personality, and breach of

proprietary interest unless he or she had obtained an interest

by express contract or implied agreement with author -- Action

dismissed.

In the spring of 1956, WH, the agent of Glenn Gould, a world

famous pianist, approached JC, a photographer and journalist,

to inquire whether JC would be interested in interviewing and

photographing Gould for a magazine story. After consulting with

his editors, JC agreed, and he and Gould met on several

occasions at a variety of locations where JC took approximately

400 photographs, made notes, and tape recorded the interviews.

Years later, after Gould's death, SPC Ltd. published without

the consent of Gould's estate a book by JC entitled "Glenn

Gould: Some Portraits of the Artist as a Young Man". The book

included photographs from the interviews accompanied by

captions and a narrative written by JC. In two actions, Gould's

estate and Glenn Gould Ltd., which owned the rights to the use

of Gould's name, sued the publisher and the executors of JC's

estate. They claimed that the publication of the book was a

breach of contract, a tortious misappropriation of Gould's

personality, and a breach of copyright. In two motions for

summary judgment, their actions were dismissed. Gould's estate

and Glenn Gould Ltd. appealed.

Held, the appeals should be dismissed.

The motions judge approached the case as an issue of

misappropriation of personality, but the case could be decided

on the basis of conventional principles related to copyright,

and in accordance with those principles, the disposition of the

motions and the dismissal of the actions was correct and the

appeals should be dismissed.

Gould consented to the photographs being taken and to the

interviews by JC. There was no contract between them, and on

the record there was no evidence that Gould or his agent

imposed any limitation on the consent. There was no suggestion

that the material was to be used only once or that the material

was to be delivered up to Gould. It was conceded that JC was

the owner of the copyright, and he was the owner of the

author. It was evident from the record that Gould did not have

a copyright with respect to his oral utterances or in the

written material derived from them. The determination that JC

owned the unrestricted copyright in the photographs and in the

written material in the book was decisive. The subject of

photographs and written material has no proprietary interest

unless he or she had obtained an interest by express contract

or implied agreement with the author. Once Gould consented

without restriction to be the subject-matter of a journalistic

piece, he could not assert any proprietary interest in the

final product nor could he complain about any further

reproduction of the photographs nor limit the author of the

journalistic piece from writing further material about him.

Cases referred to

Falwell v. Penthouse International Ltd., 215 U.S.P.Q. 975

(1981, Vir. Dist. Ct.); Pollard v. Photographic Co. (1888),

40 Ch. D. 345, 58 L.J. Ch. 251, 60 L.T. 418, 32 W.R. 266, 5

T.L.R. 157; Pro Arts Inc. v. Campus Crafts Holdings Ltd.

(1980), 1980 CanLII 1636 (ON SC), 20 O.R. (2d) 422, 50 C.P.R. (2d) 230, 110 D.L.R.

(3d) 366, 1980 CanLII 1636 (ON SC), 50 C.P.R. (2d) 230 (H.C.J.)

Statutes referred to

Authorities referred to

Fox, The Canadian Law of Copyright and Industrial Designs, 2nd

ed. (1967), p. 238

APPEAL from two summary judgments of Lederman J. ((1996), 30

O.R. (3d) 520, 1996 CanLII 8209 (ON SC), 31 C.C.L.T. (2d) 224, 15 E.T.R. (2d) 167, 74

C.P.R. (3d) 206 (Gen. Div.)) dismissing actions for, amongst

other things, tortious misappropriation of personality.

H. Lorne Morphy, Q.C., and David P. Chernos, for appellants.

Geoffrey D.E. Adair, Q.C., for respondents.

The judgment of the court was delivered by

FINLAYSON J.A.: -- This is an appeal from two summary judgments

[reported (1996), 1996 CanLII 8209 (ON SC), 30 O.R. (3d) 520, 31 C.C.L.T. (2d) 224 (Gen.

Div.)] of the Honourable Mr. Justice Lederman dismissing Action

No. 95-CQ-62384 (the "photograph action") and the other

dismissing Action No. 95-CU-92931 (the "words action"). The

motions judge held that there was no basis in law for either

action.

The two actions concern a book entitled "Glenn Gould: Some

Portraits of the Artist as a Young Man" that was published by

the respondent Stoddart Publishing Co. Limited ("Stoddart") in

1995 without the consent of or compensation to the appellants,

the Estate of Glenn Gould and Glenn Gould Limited. The book

contains photographs of the late Glenn Gould taken by the late

Jock Carroll with captions and an accompanying narrative

written by Carroll. The narrative is based on notes and audio

tape recordings of interviews of Gould by Carroll in the spring

of 1956 during an extended photo-opportunity agreed to by

Gould. The photographs were taken and the interviews conducted

for the purposes of an article that Carroll was to write and

submit to Weekend Magazine for publication. The article headed

"I Don't Think I'm At All Eccentric" was in fact published.

It contains nine photographs of Gould and a narrative that

contains many quotations attributed to Gould.

At issue in this appeal is whether the respondent Carroll was

entitled, for his own exclusive benefit, to later exploit

commercially the photographs he took of Gould in 1956 and to

use his notes and tapes of his interviews at that time to write

other articles on Gould notwithstanding that such later use of

the photographs and interviews had never been discussed with or

agreed to by Gould or his successors or assigns.

The appellants submit that the respondents' use of the

photographs and what the appellants describe as

"transcriptions" in the book in 1995 for a purpose different

from that ever discussed with or agreed to by Gould constitute:

(a) a breach of contract;

(b) a tortious misappropriation of Gould's personality; and

The principal focus of the motions judge was on the second

basis of the claim, misappropriation of personality. As the

appellants accurately observe, he did not make any express

finding whether there was a contract in this case, much less a

breach of it. While the motions judge did not accept the

conclusions urged upon him by the appellants, he adopted the

appellants' approach to the case and addressed the claims as if

the issue was whether there had been an invasion of Gould's

privacy and an unauthorized appropriation of his personality. I

agree with the motions judge's ultimate disposition and

accordingly would dismiss the appeal, but my view of the issues

differs from his in that I would decide the case on the basis

of conventional principles relating to copyright. In my

opinion, it is not necessary to decide the issues in this case

on the basis of the relatively new development in tort of

appropriation of personality when this case so clearly sounds

in intellectual property. Put shortly, the motions judge

addressed Gould's right to preserve his privacy and exploit

commercially his own fame, whereas I would address the

proprietary rights Carroll had in the photographs and other

material created by Carroll in 1956 and again in 1995.

The Facts

The late Glenn Gould was a world-famous concert and recording

pianist who died in 1982. Stephen Posen is the executor of

Gould's estate. Glenn Gould Limited is the owner of the rights

to the use of the name Glenn Gould pursuant to an assignment of

those rights from Gould in 1961. In 1956, the late Jock Carroll

was a freelance writer associated with Weekend Magazine as a

writer and photographer. Carroll died on August 4, 1995.

In the early spring of 1956, Gould's agent, Walter Homburger,

approached Carroll to enquire whether Carroll would be

interested in interviewing Gould and taking photographs of him

for a story in Weekend Magazine. Carroll, after consultation

with his editor at Weekend Magazine, agreed.

Gould and Carroll met on several occasions for interviews and

picture taking. Initial meetings took place at Massey Hall,

Homburger's office, Gould's home and along the boardwalk in

Toronto's Beaches. Gould had already planned a private trip to

Nassau and invited Carroll to travel with him in order to

continue with the interviews and photo-taking opportunities.

Carroll accepted the invitation and paid his own expenses for

which he was reimbursed by Weekend Magazine. During these

occasions, Carroll took approximately 400 photographs of Gould

and made notes and audio tape recordings of numerous

interviews. Carroll retained all the photographs, notes and

tape recordings.

There were three persons involved in the arrangements that

were made leading up to the article in Weekend Magazine: Gould,

Carroll and Homburger. Only Homburger is still alive. He

deposes in an affidavit prepared for these proceedings that:

I am aware of no agreement between Glenn Gould and Jock

Carroll which extended beyond Gould's implied consent to the

use of the interview and photographs for the Weekend Magazine

article.

In cross-examination on this affidavit, Homburger stressed

that he was not privy to any conversations between Gould and

Carroll and has no knowledge of their content. His position can

best be illustrated by the following excerpts:

Q. So you had no knowledge and couldn't have any knowledge

as to the purpose for which the interview notes were created

and the photographs were taken? You did not know that then?

A. Well the only thing I knew was that I was promoting

Glenn Gould.

Q. All right.

A. And, as such, Jock Carroll, I knowing that he was

working as a freelancer for Weekend Magazine, I assumed all

along that, for my promotion, that it might result in an

article for Weekend Magazine.

Q. But as you say, he was also a freelancer so who knows

where a story or photographs might appear in the course of

his freelance work? Fair enough?

A. Yes, but I was particularly only interested in Weekend

Magazine.

Q. That's what you were interested in?

A. That's what I was interested in, nothing else.

Carroll prepared an affidavit in these proceedings. He died

shortly thereafter and was not cross-examined on it. However,

what he said about the arrangements in question is relatively

non-controversial. The substance of it is that there had been

no discussion at any time with Gould or Homburger as to what

use he might make of the photographs that he took. He also

stated that upon leaving Weekend Magazine, he received from it

a conveyance to him of title to all literary and photographic

work that he had created during the course of his employment at

Weekend Magazine. He also stated that "various of the

photographs" that he took of Gould appeared in books and

magazines between 1956 and the date of Gould's death in 1982

without objection from Gould or anyone on his behalf.

The book that is the subject of these actions comprises 96

pages of which 17 consist of an introduction by Carroll about

the circumstances surrounding his first meeting with Gould and

an account of the interview and photo-taking sessions that

followed. Carroll expressed his perceptions of Gould and

narrated some humorous anecdotes about him and the Nassau trip.

The two appear to have gotten along very well and become

friends, at least for a time. Carroll commented on certain

characteristics of Gould, not all of which he approved. The

commentary contains express quotations from Gould that are

illustrative of Carroll's perception of Gould and add colour

and content to what amounts to a profile of his subject.

The major part of the book in terms of volume is the

remaining 79 pages which consist of photographs, one to a page.

Some are posed, others are taken while Gould is playing the

piano; others while he is walking, musing, steering a boat or

when he is simply caught in a moment of relaxation. Each

photograph has a caption written by Carroll.

Analysis

As I stated at the outset, the motions judge did not deal

specifically with whether a contract existed between Gould and

Carroll or Weekend Magazine. While the appellants maintain that

there was a contract between Carroll and his employer Weekend

Magazine on the one hand and Gould on the other, it is

difficult to determine from the record before the motions judge

just what it was that constituted the contract. There is

nothing to contradict Carroll's statement in his narrative in

the book about Gould or in his later affidavit made for the

purposes of these actions that it was Gould's agent Homburger

who approached Carroll and suggested that Gould would make a

good subject for a Weekend Magazine article. Homburger wanted

to generate some publicity for Gould who was struggling

financially in his music career and suggested the interview and

photo session to Carroll who he knew worked for this magazine.

While Homburger hoped that this association with Carroll would

result in a favourable article in Weekend Magazine, there was

no undertaking by Carroll or Weekend Magazine that any article

would be forthcoming. There was no request for pre-publication

screening of the anticipated article and, apart from Gould's

request of Carroll that he not disclose his financial position,

his eating disorder and his difficulty in dealing with people

(which requests were honoured in the article in Weekend

Magazine), there were no express conditions imposed on Carroll

as to what he was to write about or which pictures Weekend

Magazine would publish. The informality of the arrangements is

best illustrated by Carroll's account in the text of the book

of how on their arrival in Nassau, Gould secluded himself in

his room for several days and did not appear to feel he was

under any obligation to accommodate Carroll in the interview

and photo-opportunity sessions. Carroll, for his part, did not

seem to feel that Gould had such an obligation.

In response to the case presented to him, the motions judge

concentrated on misappropriation of personality as the

principal ground of legal entitlement relied upon by the

appellants. He commenced his analysis on this issue with the

statement [at p. 523]:

If Gould has a proprietary right to his personality, then

the onus is on the defendants to show that Carroll had

permission to appropriate that right by publishing the

photographs of Gould. The onus should not be on the holder of

the right to prove that he had placed restrictions on the

exploitation of his own property.

My focus is upon copyright and, on the facts of this case, I

would not impose such an onus on Carroll. Gould clearly

consented to the photographs being taken and to the continuing

interviews by Carroll. There was no contract between them,

express or implied. The only issue is whether Gould or his

agent imposed any limitation on that consent. On this record

there was none. Indeed, it is common to all the evidence that

there was no discussion whatsoever of any conditions to the

consent. While all parties expected that an article in Weekend

Magazine would come of this association, there was no

suggestion by anyone that the material obtained from it was

limited to this one article. At no time was any suggestion made

that Carroll was to deliver up to Gould the negatives of his

film, the audio tapes or his notes.

It is conceded that in 1995 Carroll was the owner of the

reasons that I will develop, it is clear that he also owned the

accompanying text in the impugned book. Accordingly, prior to

entering into publishing arrangements with the respondent

Stoddart Publishing, Carroll had exclusive proprietary rights

in the photographs and he became the exclusive owner of the

of being the author. In these circumstances, it would appear to

me that the onus is upon Gould and those who now represent him

to show that the copyright in all the photographs, tape

recordings and notes was retained by Gould or, at the very

least, that Carroll's copyrights expired once the article in

question was published in Weekend Magazine. As I have discussed

above, there is no evidence on the record that Gould or his

agent placed any limitation on his consent given in 1956.

Despite the concession with respect to copyright in the

photographs, I find it necessary to refer briefly to the

subject because it places in context the suggestion that there

was an implied restriction placed by Gould on the use that

Carroll could make of the photographs. Under the Copyright Act,

R.S.C. 1985, c. C-42, copyright subsists in a photograph for 50

years from the end of the year of the first making of the

original negative (or photograph if there is no negative) from

which the photograph was directly or indirectly derived. The

owner of the original negative, or photograph as the case may

be, is deemed to be the author and the first owner of the

photography is an art, although the proof of a truly "artistic"

character is no longer required for copyright protection. The

technical labour involved in producing a photograph is

sufficient to accord it copyright protection: see Pro Arts Inc.

v. Campus Crafts Holdings Ltd. (1980), 20 O.R. (2d) 422, 50

C.P.R. (2d) 230 (H.C.J.).

The appellants relied strongly on the case of Pollard v.

Photographic Co. (1888), 40 Ch. D. 345, 58 L.J. Ch. 251, for

the proposition that where the plaintiff attended at the

premises of a professional photographer and had photographs

taken of herself and her family for which she paid a stated

charge, the photographer was not entitled to use a copy of one

of the photographs of the female plaintiff in the form of a

Christmas card. In holding for the plaintiff and granting an

injunction, North J. held that where the defendant was paid to

take the negative for the particular purpose of supplying

copies to the plaintiff, there was an implied contract not to

use the negative for any other purpose, and he could be

restrained from using the negative for any object that was

obnoxious to the plaintiff who had employed him.

Pollard is distinguishable on a number of grounds on its

facts, but I emphasize that North J. concluded that while

neither party had a statutory copyright in the photographs

because there was no registration, the right to register was in

the plaintiff. This was because she had commissioned the

photographs and had paid for them. The law relating to

commissioning photographs is now well settled in Canada by s.

13(2) of the Copyright Act, which reads:

13(2) Where, in the case of an engraving, photograph or

portrait, the plate or other original was ordered by some

other person and was made for valuable consideration in

pursuance of that order, in the absence of any agreement to

the contrary, the person by whom the plate or other original

was ordered shall be the first owner of the copyright.

I think it is evident from the facts of this case that in no

sense can Gould be said to have commissioned the photographs of

himself. Carroll was not a photographer for hire in the usual

commercial sense and in any event there was no valuable

consideration flowing from Gould to him or Weekend Magazine for

the picture taking sessions. It is also clear that he did not

seek Gould out. As appears from Carroll's narrative in the book

in question, while Gould was well known in music circles in

1956, Carroll had never heard of him prior to being

"buttonholed" by Homburger on Gould's behalf.

The motions judge did address the issue of copyright with

respect to the oral conversations that occurred between Gould

and Carroll. The appellants submitted that what they described

as "transcriptions" of these conversations in the text of the

book in question was the subject of copyright and that

agree. In rejecting this submission, he referred to a number of

authorities and set out an extended quotation from Falwell v.

Penthouse International Ltd., 215 U.S.P.Q. 975 (1981, Vir.

Dist. Ct.) at p. 977. The court in Falwell held that the

Reverend Jerry Falwell had no copyright in unstructured remarks

that he made in an interview with members of the media. Such a

claim presupposed that every utterance he made was a valuable

property right. Relying upon this authority, the motions judge

concluded [at p. 530]:

Here too, the nature of the interview, conducted in

informal settings -- at an empty Massey Hall, at the home of

Gould's mother and on vacation in the Bahamas -- was such

that it was intended to be casual, to catch the spontaneity

of Gould when he was relaxing. The conversation between the

two men was the kind that Gould would have with a friend.

Indeed Gould and Carroll remained friends for a short while

afterwards. Gould was not delivering a structured lecture or

dictating to Carroll. Rather, Carroll engaged Gould in

easygoing conversation out of which emerged comments which

provided insights into Gould's character and personal life.

Gould was making offhand comments that he knew could find

their way into the public domain. This is not the kind of

disclosure which the Copyright Act intended to protect.

I agree with this conclusion, but I question its limits. It

is evident from this record that Gould did not have a copyright

with respect to his oral utterances or in the "transcriptions"

of them, to use the appellants' phrase. To the contrary,

Carroll as the author of the text and captions in the book was

the owner of the copyright in the very written material the

appellants are attempting to suppress.

Once it is established that Carroll owned the unrestricted

book, there is nothing else to decide. Section 5(1) of the

for the term hereafter mentioned, in every original literary,

dramatic, musical and artistic work". Carroll created the

portraits that are the artistic subject-matter of the book in

question and he was the author of the captions and text that

supported and explained them. When this book was published,

Carroll had obtained an assignment of whatever rights Weekend

Magazine enjoyed as publisher of the original article in 1956.

Accordingly, it was Carroll, and Carroll alone who was the

owner of all relevant copyright and he was the only person

entitled to publish the book sought to be suppressed.

In Fox, The Canadian Law of Copyright and Industrial Designs,

2nd ed. (1967), the author states at p. 238:

The sole right to publish, to produce or to reproduce a

work is in the owner of the copyright, and he is the only

person who can authorize others to do the things that the Act

gives to him the sole right to do. Subject to certain

exceptions, the Copyright Act provides that the author of a

work shall be the first owner of the copyright therein. The

Act treats as owner of copyright only the author of the work,

an assignee of the copyright from the author, the employer of

the author or the assignee of such employer, under certain

circumstances.

(Footnotes omitted)

It is to be noted that there is no reference in this

authoritative statement to the subject-matter of any photograph

or article of prose. The owner of the negatives is the author

and owner of the copyright in the photographs and the author of

the written material in the book is the owner of the copyright

in that written material. The subject of the photographs and

the written materials has no proprietary interest whatsoever

unless he or she had obtained an interest by express contract

or implied agreement with the author. Looked at in this light,

the concept of appropriation of personality has no application.

Once Gould consented, without restriction, to be the subject-

matter of a journalistic piece, he cannot assert any

proprietary interest in the final product nor can he complain

about any further reproduction of the photographs nor limit the

author of the journalistic piece from writing further about

him.

As must be evident from my approach to this case, I am not

persuaded that I should analyze the facts of this case in the

context of a claim for misappropriation of personality. I am

satisfied that it can be disposed of on conventional

intellectual property lines and there is no necessity to

explore any balance between privacy rights and the public's

interest in a prominent Canadian. However, I cannot leave the

matter without commenting on the efforts of the appellants to

seek the moral high ground by asserting that Carroll was

exploiting the artistic genius of another at no cost to

himself. This misdescribes the legal issues. We are not concerned

about Gould's musical or artistic works but with Carroll's

literary and artistic work. The book of portraits is Carroll's

creation, not Gould's. He was and now his heirs are the owners of

this literary and artistic creation and it is his estate that is

entitled to protection from the appellants who contributed

nothing to the book. Not only did the appellants not create the

book, they were incapable of doing so. Carroll had the

photographs, the tapes and his notes of his interviews with

Gould. He was the only person who could have reached back in his

memory and recreated the scenes where he first met Gould. The

results are captivating. The book provides a compelling insight

into the character of a musical genius. In protecting Carroll's

artistic creation, the law permits the public to benefit from an

insight into Gould's early years to which it would otherwise be

denied.

For these reasons, I would dismiss the appeal with costs.

Appeal dismissed.

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