Snow v. The Eaton Centre Ltd. et al.

Ontario High Court of Justice

O’Brien J.

Judgment: December 8, 1982

1 O’BRIEN J.:—The application in this motion relies solely on s. 12(7) of the Copyright Act, R.S.C. 1970, c. C-30, and in particular that part which gives the author the right to restrain any distortion, mutilation or other modification of his work that would be prejudicial to his honour or reputation.

2 The distortion or modification complained of is that of attaching ribbons to the necks of the 60 geese forming a sculpture known as “flight stop”, a work of the plaintiff sold to the defendants and paid for by them and a Wintario grant.

3 The geese were be-ribboned by the defendants without the knowledge or consent of the plaintiff. The plaintiff, an artist of international reputation takes the position that the work as presently displayed is prejudicial to his honour and reputation. Counsel advise there are no cases which interpret s. 12(7) of the Copyright Act.

4 The defendants argue that the plaintiff’s complaint is not one which comes within s. 12(7) but if it does, that section is unconstitutional. The Attorneys-General of Canada and Ontario have been notified of this application and hearing but are not intervening at this stage of the proceedings. The defendants further submit s. 12(7) should be looked at in a manner similar to a libel or slander action. I am not persuaded the section of the Act is unconstitutional. In my view the use of the word “independently” in s. 12(7) merely indicates the rights conferred by that section are in addition to the author’s right of copyright. I reject the argument that I interpret s. 12(7) as suggested, in my view, the section gives rights greater than those based on libel or slander.

5 It is conceded that the sculpture is a “work” within the meaning of the Copyright Act. I believe the words “prejudicial to his honour or reputation” in s. 12(7) involve a certain subjective element or judgment on the part of the author so long as it is reasonably arrived at.

6 The plaintiff is adamant in his belief that his naturalistic composition has been made to look ridiculous by the addition of ribbons and suggests it is not unlike dangling earrings from the Venus de Milo. While the matter is not undisputed, the plaintiff’s opinion is shared by a number of other well respected artists and people knowledgeable in his field.

7 The plaintiff does not seek to interfere with the Christmas advertising campaign of the defendants other that to have the ribbons removed from the necks of the geese.

8 I am satisfied the ribbons do distort or modify the plaintiff’s work and the plaintiff’s concern this will be prejudicial to his honour or reputation is reasonable under the circumstances.

9 Application granted. Ribbons to be removed by Monday, December 6, 1982 at 9 a.m. If the matter goes no further costs to the plaintiff in any event. If the matter proceeds, cost at discretion of trial judge.