Neugebauer v. Labieniec, 2009 FC 666

• Judge: Simpson, J.
• Court: Federal Court (Canada)
• Case Date: November 26, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 666;(2009), 349 F.T.R. 53 (FC)

Neugebauer v. Labieniec (2009), 349 F.T.R. 53 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JL.012

Henry Neugebauer (applicant) v. Anna M. Labieniec (respondent)

(T-64-08; 2009 FC 666)

Indexed As: Neugebauer v. Labieniec

Federal Court

Simpson, J.

June 25, 2009.

Summary:

A Certificate of Registration of Copyright respecting a book on the applicant's life as a Holocaust survivor identified the applicant and respondent as owners and authors of the book. The applicant applied to expunge the Certificate, submitting that he alone was the author and that the respondent's involvement in the book was as an editor only. The applicant relied on a written document (Confirmation of Oral Agreement) to support his application.

The Federal Court dismissed the application. The written document dealt with transcription of the applicant's tape-recorded recollections. The court accepted that there was a separate oral contract where the parties agreed to jointly author the book.

Copyright - Topic 1944

Ownership - By authorship - Who is an author - [See Copyright - Topic 1947 ].

Copyright - Topic 1947

Ownership - By authorship - Joint authorship - A Certificate of Registration of Copyright respecting a book on the applicant's life as a Holocaust survivor identified the applicant and respondent as owners and authors of the book - The applicant applied to expunge the Certificate, submitting that he alone was the author and that the respondent's involvement in the book was as an editor only - The applicant relied on a written document (Confirmation of Oral Agreement) as supporting his application - The Federal Court dismissed the application - The written document dealt only with the respondent's transcription of the applicant's unorganized tape-recorded recollections, which resulted in 30 pages of material - The book was a 224 page narrative of the applicant's life, written entirely by the respondent - The respondent did not merely edit or organize the applicant's recollections with minor additions - The respondent included original material, researched herself, to expand the applicant's story - The court accepted that there was a separate oral contract where the parties agreed to jointly author the book - The applicant's post-publication behaviour (e.g., holding out the respondent as an author during promotional activities) was consistent with the respondent's claim of a separate oral agreement that the parties were joint authors of the book - The court stated that the "respondent contributed sufficient originality and expression to claim authorship of the book".

Copyright - Topic 1947

Ownership - By authorship - Joint authorship - The Federal Court held that joint authorship required collaboration and contributions which were not distinct - The court rejected the expanded test for joint authorship in a British Columbia Supreme Court case (Neudorf v. Nettwerk Productions Ltd.), which added a requirement that the collaborators intend to regard each other as joint authors - See paragraphs 44 to 52.

Cases Noticed:

Drapeau v. Girard (2003), 127 A.C.W.S.(3d) 533 (Que. C.A.), refd to. [paras. 22 and 51].

New Brunswick Telephone Co. v. John Maryon International Ltd. et al. (1982), 43 N.B.R.(2d) 469; 113 A.P.R. 469; 141 D.L.R.(3d) 193 (C.A.), refd to. [para. 36].

Gould Estate et al. v. Stoddart Publishing Co. et al. (1996), 30 O.R.(3d) 520 (Gen. Div.), affd. (1998), 114 O.A.C. 178; 80 C.P.R.(3d) 161 (C.A.), refd to. [para. 39].

Hager v. E.C.W. Press Ltd. et al., [1999] 2 F.C. 287; 158 F.T.R. 44; 85 C.P.R.(3d) 289 (T.D.), refd to. [para. 39].

Neudorf v. Nettwerk Productions Ltd. et al. (1999), 26 B.C.T.C. 161; 3 C.P.R.(4th) 129 (S.C.), not folld. [para. 44].

Levy v. Rutley (1871), 6 L.R. 976 (C.P.), refd to. [para. 45].

Childress v. Taylor (1991), 945 F.2d 500 (2nd Cir.), refd to. [para. 50].

Drapeau v. Carbone 14, [2000] J.Q. no 1171 (C.S.), refd to. [para. 51].

Saxon v. Communications Mont-Royal Inc., [2000] J.Q. no 5634 (C.S.), refd to. [para. 51].

Dolmage v. Erskine et al., [2003] O.T.C. 38; 23 C.P.R.(4th) 495 (Sup. Ct.), refd to. [para. 51].

Wall v. 679927 Ontario Ltd. et al. (2007), 256 N.S.R.(2d) 34; 818 A.P.R. 34; 2007 NSSC 197, refd to. [para. 51].

Wall v. Horn Abbott Ltd. - see Wall v. 679927 Ontario Ltd. et al.

Authors and Works Noticed:

Tamaro, Normand, The 2009 Annotated Copyright Act (2008), pp. 189 to 191 [para. 45].

Counsel:

Jordana Sanft and Jill Melissa Daley, for the applicant;

Christopher Kozlowski, for the respondent.

Solicitors of Record:

Ogilvy Renault, Toronto, Ontario, for the applicant;

Kozlowski and Associates, Mississauga, Ontario, for the respondent.

This application was heard on November 26, 2008, at Toronto, Ontario, before Simpson, J., of the Federal Court, who delivered the following judgment on June 25, 2009.