Hutton and Denali Music Ltd. v. Canadian Broadcasting Corp., (1992) 120 A.R. 291 (CA)

• Judge: Bracco, Foisy and Fraser, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 12, 1992
• Citations: (1992), 120 A.R. 291 (CA)

Hutton v. CBC (1992), 120 A.R. 291 (CA);

    8 W.A.C. 291

MLB headnote and full text

Douglas Hutton and Denali Music Ltd. (appellants/plaintiffs) v. The Canadian Broadcasting Corporation (respondent/defendant)

(Appeal No. 9003-0305-AC)

Indexed As: Hutton and Denali Music Ltd. v. Canadian Broadcasting Corp.

Alberta Court of Appeal

Bracco, Foisy and Fraser, JJ.A.

February 12, 1992.

Summary:

Hutton conceived and produced a televi­sion program called "Star Tracks". He per­suaded the CBC to co-produce with him a program called "Star Charts" (SC) based upon "Star Tracks". Hutton retained copy­right in SC, registering it as a "dramatic work" under the Copyright Act. The CBC cancelled SC and three years later produced and aired "Good Rockin' Tonite" (GRT). Hutton brought a copyright infringement action against the CBC, claiming GRT breached the copyright in SC. Hutton also claimed breach of fiduciary duty and misuse of confidential information.

The Alberta Court of Queen's Bench, in a judgment reported 102 A.R. 6, dismissed the action, but provisionally assessed damages. Hutton appealed.

The Alberta Court of Appeal dismissed the appeal.

Copyright - Topic 1024

Works subject to copyright - Particular works - Television programs - Two tele­vision programs were premised on the idea of a video DJ showing rock videos - The first program was copyrighted as a "dra­matic work" - The copyright owner claimed the second program infringed his copyright - The Alberta Court of Appeal affirmed there was no copyright infringe­ment where there was no substantial simi­larity between the two programs and the second program was created independently of the first.

Copyright - Topic 4483

Infringement of copyright - Acts consti­tuting - Copying television program - [See Copyright - Topic 1024 ].

Equity - Topic 3904

Fiduciary or confidential relationships - Breach of confidence - Elements of action for - The Alberta Court of Appeal stated that there was breach of confidence only where information conveyed was confi­dential, it was communicated in confiden­tiality and it was misused by the party to whom it was communicated.

Cases Noticed:

Francis Day & Hunter v. Bron, [1963] 2 All E.R. 16 (H.L.), refd to. [para. 4].

Preston v. Twentieth Century Fox Canada Ltd. and Lucas et al. (1990), 38 F.T.R. 183; 33 C.P.R.(3d) 242 (F.C.T.D.), refd to. [para. 5].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14, refd to. [para. 15].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 2, sect. 3(1)(b) [para. 3].

Counsel:

M.D. MacDonald, A.A. Garber, J.K. Mc­Fadyen and N.B. Thompson, for the appellants;

I.C. Hutton and G.B. Comba, for the re­spondent.

This appeal was heard on January 15 to 17, 1992, before Bracco, Foisy and Fraser, JJ.A., of the Alberta Court of Appeal.

On February 12, 1992, Foisy, J.A., delivered the following memorandum of judgment for the Court of Appeal.