Gould Estate V. Stoddart Publishing Co. Ltd. - at The Court of Appeal

At The Court of Appeal

The Court of Appeal for Ontario affirmed the trial decision, dismissing the appeal but decided the case on conventional copyright principles rather than appropriation of personality. The court held that the oral statements of Gould could not be protected by copyright because there was not fixation. Gould was not reading from a speech or had prepared anything that was said.

Finlayson J.A. approved the trial judge's findings, where he held:

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.