The long-awaited appeal decision in Pyrrha Design Inc. c. Plum and Posey Inc., 2022 FCA 7, reinforces the principle that “the simpler a copyrighted work, the more exact the copy must be to constitute an infringement”. By dismissing the appeal of the Federal Court’s decision in Pyrrha Design Inc. c. Plum and Posey Inc., 2019 FC 129, (by Phelan, J.), the Federal Court of Appeal found no palpable and overriding error in the lower court’s reasoning and decision that the respondent, Plum and Posey, did not infringe no copyright that the appellant, Pyrrha, had in her jewelry designs. Both parties created jewelry of a similar design using antique wax seal impressions. The imagery on the seals used by each party was in the public domain, as was the “lost wax” casting method used by the parties to create their products.
Interestingly, in reviewing the Federal Court’s infringement analysis, the appellate judges found no error in Judge Phelan’s use of a two-step process to determine whether he there was a “substantial similarity” between the works at issue, while taking an overall “holistic-qualitative” approach to deciding the issue, as noted by the Supreme Court in Cinar Corporation v. Robinson2013 SCC 73. The two-step process adopted below by Justice Phelan in Pyrrha first considered “all similarities” between the works and then “determined whether those similarities represented a substantial part of the author’s skill and judgment”.
In Cinar, the Supreme Court recognized that an American-style “abstraction-filtration-comparison” approach can be useful in determining whether a “substantial part” has been copied in the context of certain works, for example computer programs; however, they found such an approach to be reductive. Instead, the Supreme Court advocated a “qualitative” and “holistic” approach that did not examine isolated passages (or aspects) of a work, but rather both works as a whole. Decisions made after Cinar suggested that courts treat any “substantial similarity” approach that incorporated an element of “abstraction” as distinct and separate from one that was “holistic”. In Pyrrha, Justice Phelan specifically recognized such a discrepancy between the “less holistic” approach taken in earlier cases and that taken in Cinarwent on to note that “the holistic and qualitative approach allows non-original material to form part of the substantial part of an author’s skill and judgment when specific combination of these elements has been copied” [emphasis added]. On appeal, the Court found no error in an approach that compared the similarities of the works at issue before abstracting what was “original” in the plaintiff’s work (and therefore likely to be infringed), and ask if this some of the work has been copied, might suggest that the “holistic-qualitative” and “abstract-filter-compare” approaches do not necessarily oppose each other and that it is not incorrect to incorporate an element of abstraction and of filtration, before making a further comparison with determining “substantial similarity” in the context of an overall holistic approach.
In this regard, the extent of the protection afforded by the courts to Pyrrha’s jewelry is also noteworthy. The Federal Court of Appeals found no palpable and overriding error in the lower court’s finding that Pyrrha’s drawings were relatively simple copyrighted works and should receive a low degree of protection. Many elements of Pyrrha’s jewelry were found to be in the public domain (for example, imagery in ancient wax seals and the casting method). Moreover, the evidence showed that Pyrrha did not create or alter the imagery of the wax seals used to create the jewelry. Therefore, the scope of copyright protection was limited only to the creative elements produced by Pyrrha, namely the particular borders and the specific way in which oxidation and polishing were used in each design, which according to the Federal Court, was a “pretty simple mechanical production”. Having concluded that the drawings were relatively simple works, the appeal judges found that the trial judge did not err in granting the works limited copyright protection. Since copyright only protects expression – not ideas, concepts or methods – Pyrrha cannot claim copyright in the method used to cast the metal jewelry or in the design creating jewelry from wax seals.
Regarding the analysis of infringement, the Federal Court of Appeal further held that the Federal Court had set out and applied the proper test for copyright infringement, which the courts held required two elements: (1 ) the similarity between the works; and (2) a “causal connection” showing that the defendant copied the plaintiff’s works (and which can be inferred based on the similarity of the works and the defendant’s access to the plaintiff’s work). In Pyrrha (2022), the Federal Court of Appeal found no error in the lower court’s approach of considering “similarity” first. Further, the Court did not err in limiting its consideration of “similarity” to the original elements of Pyrrha’s drawings, which the Federal Court found were the borders and the specific manner in which the oxidation and polishing were used in each drawing in combination with the rest of the features of the specific work (i.e. no work or method taken from the public domain), and concluding that, given this limited scope of copyright protection works of Pyrrha, the works of the parties were not similar. Since there was no similarity, it was also not an error on the part of the Federal Court to find that it was not necessary to determine whether Pyrrha’s drawings were the “source” of Pyrrha’s drawings. Plum and Posey, notwithstanding proof of access.
For a full summary of the trial decision, click here.