An American photojournalist, Ms. Leuthold, was on the scene in
New York City on September 11, 2001. She licensed a number of still
photographs to the CBC for use in a documentary about the 9/11
attacks. The photos were included in 2 versions of the documentary,
and the documentary was aired a number of times between 2002 and
2004. We originally wrote about this in an earlier post: Copyright Infringement & Licensing
Pitfalls. The court found that the CBC had
infringed copyright in the photographs in six broadcasts which were
not covered by the licenses. Though Leuthold claimed damages of
over $20 million, only $20,000 was awarded as
damages by the court.
In Leuthold v. Canadian Broadcasting
Corporation, 2014 FCA 174, the Federal Court of
Appeal upheld an award of double costs against Leuthold. Early in
the litigation process, the CBC had formally offered to settle for
$37,500 plus costs. Ms. Leuthold did not accept the CBC's offer
and went to trial where she was awarded $20,000. Ms. Leuthold's
total recovery was substantially less that the amount of the
CBC's offer. When this happens, a plaintiff can be liable under
Rule 420 for double costs, which was awarded in this case.
Double costs amounted to approximately
$80,000 in these circumstances, which means Ms.
Leuthold is liable for about 4 times the amount of the damage
award. Although Ms. Leuthold objected that such a disproportionate
costs award was "punitive", the court concluded:
"The sad fact of the matter is that litigation produces
winners and losers; that is why it is such a blunt tool in the
administration of justice. But justice is not served by allowing
persons who have imposed costs on others by pursuing or defending a
claim which lacks merit to avoid the consequences of their
behaviour. Such a policy would be more likely to bring the
administration of justice into disrepute than the result in this
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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