Fraser Munden and Michael Glasz are professional filmmakers specialized in documentary filmmaking. They operate a production company under the name Thoroughbred Pictures Inc. which was incorporated in 2013. Fraser is responsible for the creative works and Michael is responsible for the administration of the company. Alexandre Choko, is a real estate agent who, at all relevant times herein, was a boxing promoter, author of a published work entitled “The Future of Boxing” and boxer.
In 2014, Choko was afforded the opportunity to help organize and promote boxer Mike Tyson’s one man show “The Undisputed Truth” to be held in Toronto in September 2014 as well as, to bring Mike Tyson to the Sportel event to be held in Monaco in October 2014, where he had a booth to promote his own book. In the spring of 2014, Gary Munden met with Choko and his business associate, Victor Thériault, at a dinner hosted by boxer Ian Clyde. Fraser Munden’s father, Gary Munden is a professional photographer. Gary was invited by Choko to take photographs backstage of Mike Tyson at the Toronto event and he accepted.
On August 30, 2014, Fraser Munden wrote to Choko and Mr. Theriault to indicate that he would be interested in doing a cinema verité style take on Mike Tyson and also film his meeting scheduled with the Mayor of Toronto. A meeting was scheduled at Choko’s office to discuss the arrangements on September 3, 2014. The September 3 meeting was a success. Fraser Munden was accompanied by his business partner, Michael Glasz, and his father Gary Munden. While Choko said he could not guarantee access to Mike Tyson, he had a very close relationship with Mrs. Tyson, for whom he acted as a confidant, and he assured Fraser that he would be able to obtain permission to use the footage to make a creative short film. There was no discussion at the meeting about copyright.
Choko asked to include in email the phrase that he would own all footage with Mike Tyson. Michael Glasz did not immediately agree. He was a first year law student and spoke to Fraser Munden about the risk of writing that in the email. However, they decided that the parties were all acting in good faith and agreed that this was necessary to move forward with the project. A final email was forwarded to Choko indicating that he would personally own all of the footage. Choko gave them access to film Mike Tyson but otherwise they had free reign to film what they wanted and they were not remunerated in any way for their work.
Michael and Fraser also accompanied Mike Tyson to a private meeting that Choko organized with the mayor of Toronto, the late Rob Ford, who candidly spoke to Mike Tyson about his own addiction issues. Michael and Fraser were the only crew filming that rather intimidate meeting. They also indicated that it became apparent, in Toronto, that Choko had exaggerated his friendship with the Tysons. Mike Tyson was visibly annoyed by Choko’s constant presence and insertion into his interviews and photo opportunities.
While filming at the University, Michael Glasz received a call from Gary Munden giving him the heads up that Choko was frantically trying to reach them as he wanted the footage of the Tyson outburst on live television as well as, the footage of the events before and after the interview. It appears that the Tyson interview went viral on youtube and Michael and Fraser understood that Choko was seeking to sell to the footage they captured to the fight network.
In any event, they refused to hand over the footage as they felt it would be a betrayal of Mike Tyson’s trust and was unethical. Moreover, it would jeopardize their short film project. This angered Choko who claimed that he was the owner of the footage. He then became aggressive and asked where they were staying, threatening to send someone over to break in to get back his property. Upon their return to Montreal, they decided to end their association with Choko. They realized that Choko considered the email exchange was a binding agreement which granted him ownership of their work. They disagreed and revoked their assignment.
Choko eventually apologized and thanked them for refusing to sell the footage. Fraser and Michael assumed there was some sort of misunderstanding and agreed to enter into another agreement with him which they negotiated over the course of several weeks. On October 3, 2014, the parties signed a short form agreement which acknowledged that Choko was owner of all of the footage taken in Toronto and Monaco but for archival purposes only. Fraser Munden was granted an exclusive and irrevocable licence to use the footage to create derivative works. He was given a 12 month period to prepare the short film and provide Choko with any other clip that he could use for the promotion of his book so long as Fraser Munden considered it did not impact on his creative project.
On October 4, 2014, Choko forwarded the short form agreement to his attorney, Joe Sisto, and asked him to prepare a formal longer form agreement that would protect the parties. Neither party was happy with the contents as it was a compromise agreement which allowed the Michael and Fraser to move forward. On December 15, 2015, they received a letter of demand from Choko’s attorney seeking a copy of the footage and terminating the short form agreement. On January 21, 2016, their attorney replied to the letter of demand seeking damages due to Choko’s breach of the agreement which was to use his best efforts to obtain permission from Mike Tyson to use his image.
On June 21, 2016, Choko left a message for Gary Munden which was considered a veiled threat. In it, Choko advised Gary Munden to expect a visit to resolve the issue. On October 13, 2016, Michael and Fraser instituted the action seeking the nullity of the October 2014 agreement as well as, the nullity of the September email agreement assigning the footage. Plaintiffs (Michael and Fraser) argue that they are the owners of the copyright in the footage taken at the Toronto and Monaco events. They seek to declare the September 4, 2014 email null and void due to Defendant’s (Choko’s) fraudulent misrepresentation that Mrs. Tyson required that Defendant be owner of the footage. Alternatively, they argue that they have revoked the assignment of copyright.
Mr. Choko argues that he was assigned the copyright to the footage by way of the September 4, 2014 email. He further argues that he is the owner of the footage as Plaintiffs were working for him as cameramen in the context of employment contract. He adds that it would be unprecedented to affirm that cameramen are the owners of copyright when working for a producer. The parties agree that the footage is an original cinematographic work within the meaning of section 2 of the Copyright Act (the “Act”).
In this case, the film footage constitutes an original cinematographic work. In this case, the evidence is clear that Plaintiff Fraser Munden is the author of the work. Defendant provided Plaintiffs with access to the events to be filmed but Fraser Munden had carte blanche to use their skill, judgment and creativity in the filming and editing of the events without any input or direction from Defendant.
In the present case, Fraser Munden was not employed by Defendant. He was an independent contractor who filmed the Toronto and Monaco events, for no remuneration, with the sole purpose of creating a documentary on Mike Tyson. He leased his own equipment, travelled to Toronto at his own cost and filmed the events without any creative direction or control by Defendant. Moreover, Defendant was not a film producer. He co-promoted the Mike Tyson show which Plaintiff did not film.
The evidence establishes that at the September 3, 2014 meeting there was a loose arrangement whereby Defendant would get some photographs and film footage for his personal use and also to help promote his coffee table book, The Future of Boxing. In exchange, Plaintiffs were given access to Mike Tyson to create a short film or documentary. The parties did not discuss copyright. However, when there was an exchange of the draft email to be sent to Mrs. Tyson, Defendant requested that he personally own all the footage. This request was not accepted at first but Defendant claimed that Mrs. Tyson made it a condition that he personally own all of the footage. As a result, Plaintiffs consented to assigning ownership of the copyright in the footage on the understanding that it was a condition to filming Mike Tyson.
However, Plaintiffs later learned that Defendant’s representation regarding Mrs. Tyson was not true. At trial, Defendant admitted that Mrs. Tyson did not request that he personally own the footage. Fraser Munden testified that he would not have agreed that Defendant own the copyright had he known that Mrs. Tyson did not require it for the purposes of their film project. The Court concluded that Fraser Munden’ consent was vitiated by error induced as a result of Defendant’s misrepresentation on an essential consideration for the assignment. As such, the September 4, 2014 assignment of copyright is null and void.
In addition event, the Court underlines that even if the assignment were valid, as there was no consideration given by Defendant for the transfer of ownership, the assignment could be withdrawn or revoked at any time. On the facts of this case, Fraser Munden revoked the assignment of copyright in September 2014 when he refused to provide the footage to Defendant, upon his request, in Toronto. This was confirmed orally upon his return to Montreal and, in writing, on October 2, 2014, in Mr. Glasz’ email to Defendant confirming that Fraser Munden was the owner of the footage.
Mr. Choko argued that the “experience” of meeting Mike Tyson constituted the “consideration” given in return for the assignment of copyright. However, every creative work can arguably be said to involve an experience, such that, there would never be a need to remunerate the author for the assignment of copyright in his work. This result is contrary to one of the objectives of the Act which is to ensure that the author obtains a just monetary reward for his work. Therefore, the Court concluded that Fraser Munden owns the copyright in the footage taken at the September and October 2014 events.