Gould Estate v. Stoddart Publishing Co. Ltd. (1998), 39 OR 555 (Ont CA)

The Estate of Glenn Gould, alleged copyright infringement and “appropriation of personality” against the publisher of Glenn Gould: Some Portraits of the Artist as a Young Man, a book based on a 1965 interview with the famous pianist. The content in question had initially appeared in Weekend Magazine and included numerous direct quotes by and pictures of Gould.

Both parties to the action agreed that there was no explicit contract governing the future use of the content in question.

The Ontario Court of Appeal dismissed the copyright claim on the grounds that the Defendants owned copyright to the pictures, and oral statements given in the course of an informal interview do not attract copyright protection:

[37] 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 discourse which the Copyright Act intended to protect.

The Court also found that the tort of “appropriation of personality” did not apply, as Gould’s name was not being used for the purpose of a commercial endorsement. Instead, he was the subject of the work in question.

The “sales vs. subject” distinction articulated in this case stands for the proposition that writing or reporting about a person is legally distinct from using that person’s name or reputation to sell a product.

Decided by the Ontario Court of Appeal on May 6, 1998.
Click here for the full text of the decision.

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Filed under Appropriation of Personality, Fair Dealing

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