File:Albo v The Winnipeg Free Press et al 2019 MBQB 34.pdf


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date february 22,2019 docket 15-01-95374 winnipeg centre) indexed albo the free pressetal. cited mbqb court queen's bench manitoba etween: frank counsel: plaintiff dave hill and deborah son for press division jonathan kroft canadian newspapers limited robert j.e prokopanko partnership association defendants architects judgment delivered: saull introduction "dr filed claim damages against defendant,the press(the"press ,for copyright infringement breach contract same time maa maintaining that knew ought have known about alleges had with intentionally interfered his economic relations unlawful means seeks 476,673 further 250,000 500,000 punitive damages. has since been discontinued proceeded trial before these are reasons judgment. overview architectural historian residentof winnipeg.the defendant daily newspaper widely circulated throughout manitoba. worked together create series articles, later published book carolin vesely buzz currie thehermeticcode winnipeg, press,2014 exhibit"2 hermeticcodefocused architecture legislative building "mlb although was not author source most information contained book. according around october discovered there hidden master plan development city dated back first two decades twentieth century after conducting research revealed during this frame city's elite sought transform into utopia based upon international reform philosophy called beautiful movement used beautification monumental central devices correct social order instill moral civic virtue amongst citizens. subject developed powerpoint slide presentations which delivered various public gatherings viewing one staff members became interested idea influence plans early might attractive readers number offurther meetings between retained paid consultant assist project publish articles. subsequently,the three articles september were written senior general features writer randall turner "turner ,who conducted own extensive numerous interviews many sources other than albo. discussed things winnipeg's turn covered presentation. however,the did focus historical roots but rather moved forward cover look what future hold. published,the approached offered share cost republishing form coffee table commemorate 100th anniversary agreed republished randy how shaped dna, (winnipeg the"book (exhibit"1 takes position entitled republish without consent,and provide consent. [11 does claims contribution and/or nonetheless gave him rightto preventtheir republication while agrees thatsome ofthe facts ideas albo's presentation also appear represent turner's story writing certainly copy any work may copyright. [12 denies exclusive right write maintains others fact itself drew heavily entirely works others. iii [13 trial,four witnesses exhibits testified behalf editor paul samyn "samyn ,press publisher cox addition,there questions answers read from examinations discovery dispute. [14 common ground leading authority urbanism knowledge vast holds degrees distinctions major universities including phd history art university cambridge. [15 december collaborated publication hermetic code chronicled pertaining coded messages concealed design mlb. [16 expertise years academic basis remains relatively successful received approximately 241,625 royalties sales hermeticcodein all four its editions earned 257,123 giving tours mlb commentary significant income continues earn revenue speaker well sale code, providing [17 researching internet came across drawing created either artist james henderson (exhibit appeared web page gallery province ofsaskatchewan reflected partially unrealized developmentofthe influenced sparked interest who undertook planners century. [18 january months following taught classes area authored several literary visual productions discovery, included lectures webinars, remarks related new interpretation urban winnipeg. [19 27,2013 keynote lecture heritage ball hotel fort garry press,cox event each result hermeticcode focused lastcentury their relationship ofarchitectural planning proposed partnering featuring onwards employees email in-person conversations regarding 2014,samyn indicated wanted something"major using foundation. exchanges two-hour held newsroom purpose ofthis developing ran slides provided oral notes visible audience deck marked evidence exhibit best record available leave member press. [21 final decision made assigned then contacted arrange meeting however would like discuss terms arrangement samyn. 30,2014 exchanged emails discussing involvement potential (exhibit"29 relevant portions reproduced below: • samyn: promising today moving heavenly exciting please fill manner you see involvement. albo: beyond rough framework ofa projectthat runs print augmented online haven't firmed shape point thought loose let where award- winning journalistic eye suggests go. your think plenty opportunity showcase perspective passion pieces showcasing include video pointing out our digital key buildings talking architecture. obviously writers exploring additional avenues buti atthis fair say starring role project. help? thank outlining broad stroke conceptions know thrilled collaborating another award-winning always vigorous champion untapped glory proven make formidable team. assumed remunerated require considerable commitment part detail labyrinthine tributaries revisionist account paradise'could easily become implausible guide. regard hoping participate some capacity writer, principal appreciate accept unpaid work. consider approach take ready willing able launch blockbuster! hear saying need clear will different words publishing profit nor royalties. doing platforms present past vision hope body both inform engage unlike unlikely initiative much impact bottom line. addition research,i monetary recognition serves foundation build moreover,i prepared come hourly rate pay consults even videos featured. seem discussion dollars cents? emphasis added] negotiations press, consultantto agreement consulting follows: advice architecture; lump sum 1,500 fee per hour and, assistance acknowledged. confirm calling responded exhibit"36 day stating part: said solid move trust thatifthe enough develop book,you fuller treatment fascinating standard industry [emphasis last sent,the intention book,and,in event,did agree suggestion respecting admits nobody ever told representations understood that: sharing sole creating project; research, way involving,the works. met home went over exhibit"7"with turner,and interviewed contents exhibit"7"to deleted destroyed took interview. [28 input 8,2014 put was"not remotely close result,turner embarked investigations interviews. [29 followed april progressing substantive communication when checking communications end august essentially complete. [31 similar media department project's content 26,2014 exhibit"8 left [32 melissa tait attended involved assembling photographs videography photography text makes done selected by,the spent hours archives ms.taft won award use preparation literature reviews historians authors people knowledgeable area. books preparing including: jim blanchard (manitoba alan f.j artibise gateway city:documentson cityofwinnipeg1873—1913, society winnipeg:a growth montreal london mcgill — and,james gray,redlightson theprairies,second printing edition ontario, fitzhenry whiteside those variety professors brent bellamy wins bridgman antoine predock; gail little mark ager johanna hurme etienne gaboury mel michener arthur blankstein; david penner jon trenholm rostecki giles bugailiskis susan algie glen murray; murray peterson. [36 research,and experts consulted, bellamy,turner arc"for began century,encompassed modernism mid-twentieth concluded renaissance recent decade. september6,2014,thefirst articlestitled"citybeautiful—part1:great xpectations"was released format parts 13,2014and 20, respectively. extensively quoted article featured posted [39 complaint they object acknowledged referred highly complimentary accompanying evidenced sent 2014(exhibit"84 randy, want extend sincerest congratulations fantastic article, brilliantly woven such care whorehouses delight bawdy mighty fine job thoroughly impressed great gift province. revel proud. 6,2014,dr invoice services full amount. initially past,the books,for part,fell short ofexpectations lost money diverted resourcesfrom a"shrinking newsroom"that shifting focusfrom publication. released,the possibility turning maa's taking place contribute 35,000 towards cost. thisfinancial viable option samyn's words,it a"game changer virtually identical wrote few paragraphs considerably online. launched mcnally robinson celebrate release notified launch. prior launch,at raise complaints aboutthe raised consent exhibit"98 month stewing matter quite now feel necessary broach directly contrary previous correspondence understanding wfp process negotiation contributions book,i asked me,just case jan advised that"we book"and statement,i pursue request statement false. whole initiated addresses given life therefore find mutually agreeable solution unauthorised sic intellectual property. resolved sic]this issue revisiting financial compensation interim withholding royalty payments code. way(exhibit"98 can assure offer generous good faith radar screen only proposal led greatly appreciated sic] credited inaccurate liken wide ofsources research. valued you. must caution seriously non- payment obligations negotiate response threats nature. return email(exhibit"99 stating: speedy reply value longstanding thatthe amenable sitting down resolve amicably? exchange arranged 2015,to matter. 14,2015,the unilaterally cancelled reschedule again until counsel demand letter suggested among originated theory modelled however,both attrial dr.albo admitted thatthese notaccurate. him. summary issues positions parties asserts product assembled clearly defined format. argues represents substantial wherein expressed skill unauthorized reproduction constitutes 27(2)ofthe copyrightact r.s.c 1985,c c-42(the"act ,the sold trade distributed,exposed infringed that"much,if contentof presentationsto them consisted artists photographers. relies points: hold collection organized pursuant provisions act funds protection compilations chapter deals plansfor partofthe century,as dr.albo's presentation,the overlap entitle comments quotations under doctrine of"fair dealing narrative arc essence commence proceed trace ancient times ultimately garden eden hand provides forward-looking self-image evolved through distinct phases renaissance. [54 consideration found latter half 2014(see paras. 22-23 above particular 28,2014 (exhibit"35 ,samyn wrote: this: -we 1,500for materials(reports photos,slides etc)that of$75for consulting/interviews conduct apply produce thatinvolve project,showcasing etc. indeed seems reasonable hearing more details soon. [55 submits law recognizes duty honest performance requires relation oftheir contracted obligations(see bhasin hrynew,2014 scc here breached failed amounts licence"granted consentfrom kind particularly flagrant scope limiting requestfor worksto projectand confirmed specific not"be otherwise way,to explicitly excluded contract. denied appropriately role"in serve entire this,once again,despite confirmation moreover misappropriated distorted. respect entered previously plus invoiced accordance full. veto requiring republished. consult contributor introductory pages photograph on-camera wasfeatured published. liability length presented articulate, intelligent strong-willed individual emotional confrontational especially cross-examination question feels slighted treated unfairly whether cause action liabilityfor principles authorities synthesis ofthese creature statute rights remedies exhaustive cchcanadian ltd v.lawsociety fupper canada,2004 cch para section reproduce thereof material whatever perform unpublished thereof. "copyright protects expression protect ofthemselves flowsfrom fixed attract protection(cchat person her moreau st. incent 1950]12 c.p.r original copyrighted involve exercise 5(1)ofthe actprovides subsists canada,in every dramatic musical artistic certain conditions ifa isfixed protected not. organization other's defines compilation"as: resulting selection literary, data. compilation existing casts form. arranger components she represented cchat view limits orform ofideas notthe themselves originality requirement expressive element cases interview target concern interviewer reduces acquires being interviewed. facts(hager ecwpressltd 1999]2 f.c. hager maltz witterick f.c.j "maltz9 phrases generic constitute copying(tomas boaden catering [1995 no. 27(1 actdefines owner anything 3(1)ofthe actdefinesthose whatever,to unpublished,to sections actprovide constitutes"fair private study,etc. study education, parody satire infringe news reporting mentioned: a)the (b)if source,the name work, performer performer's performance, maker sound recording broadcaster signal. where"fair dealing"is onus prove falling within exception exceptions user's large liberal ensure users unduly constrained considered user consumer composers music publishersofcanada bellcanada,2012scc socan para. para.51 warman v.fournier,2012 "research"can activities establishment conclusions piecemeal informal exploratory confirmatory undertaken except personal step analysis identifying category applies low threshold(socanat paras "news outlet includes promulgate recounted elsewhere(warman 51,socanat establishing non-literal copying copying,the satisfied element(s cinar corporation maltzat 28,30 testimony reference exhibit"103 exhibit"103" chart identifies copied instances allegedly from, six ofthem,as editorial 8,2014(exhibit"7 exhibit"7 documents portage main"and placed dropbox 21,2014(exhibits"13" telephone conversation 21,2014; 22,2014 turner(exhibit"51 properly assess validity determine relied manner,i established a)dr staff. allows totality exhibit"7"as though compilation" because paintings constituted references mean control component secure establish degree work(see reasons: ■ exhibit"7"in measure recites anyone chooses them. deal claimed scholars historians,for example artibise(exhibit"111 158)and exhibit"110 extemporaneous statements accompanied presentation,they reduced form(cchat b)the 13,2014 reviewed formal reading script reviewing asking questions"as least occasions assertion. stated very elements simply happen. protected(cch fact, reporter records flows benefit press(see hagerat mind regarding"dna"that subtitle falls given,i unable conclude brought dna metaphor. largely entirely,from follows statements,the sourcesfor ideas(see paras.8 c)documents main"and"notes randy" 21,2014 uploading folder. insofar exhibit"14"is concerned third party sources. exhibit"13 speaking exhibit"7"apply equally document. exhibits"13"and 14"as"compilations comprising documents(see d)dr.albo's seeking help crafting lead article,the spoke phone. call articulate looking phone instead, entry autobiography michael hruska own)in archives. documentary was,at structured speech notsatisfied circumstances instead,the rest e)the course attempted ascertain gold leaf ceiling bank winnipeg,and assistance. exhibit"51 estimated million standards figure math receiving manager. mind,the leaf(even estimate)is such, moreover,the level ofskill judgmentthat required trivial involves purely mechanical amortization view,a exercise. f)dr.albo's 26,2014(exhibit"8 meaningful difference 2014(exhibit"8 2014(exhibit determinations concerning 67)apply should primarily following: and"presentations exhibits"8 "13 "14 fourth weeks (may 21,22 submitted outline march draft 29,2014(exhibit"53 attend contributed issue; articles(exhibits"15 book(exhibit"1 problematic respects. save express own. counsel's making portion stealing case,even expressed. relating lies snippet direction vein consulted chapters differently did. the"narrative arc"ofthe works,that exhibit"7"the 2014,that fullest cursory review obvious start opposite directions. starts moves eden. economy problems however,there archival multiple writings interviewers journals time. mood 1950's 1960's modernist period draws architects. renaissance"focuses modern-day ponders comparison combination support conclusion described concept far turner. iv)fair comments, residence. already ruled quotations, [100 dealing"analysis implicates stages. [101 stage materials ofthe"fair act,i.e ifthe constitutes"research"or"news see:sections noted socan(at terms"research"and"news reporting"are threshold requirements low. [102 second regard,in cch(at para.53)the supreme canada set factors determination: dealing; character amount alternatives nature effect ❑f allowable purposes i.e. criticism undertake objective assessment real motive work(cchat [104 publications circulating learn [105 context custom practice i.e industry(see here,the obtained turner,an experienced journalist feature view,therefore,the weighs favour offairness. [106 the"amount"of along snippet"of then"took circumstance hardly too much. [107 indication acted alternative quotes assisting exposure himself. the"nature 58)the acknowledgement could wider dissemination goals [109 himself movement. publicly disseminated thereby mind,this tips scalestowardsfinding fair. [110 likely compete market work" tend suggest capable competing [111 taken fall comfortably compass [112 precinct law,the primary bar: basic valid parties, acceptance consideration. rule agreements construed fashion effectuate intentions determined "entirety agreement(bg checo british olumbia hydro andpowerauthority[1993 scr subjective independent" determining bargain goal contractual intent agreement(sattva capital corp creston moly paras.49 interpreting contract,the necessary,the light surrounding execution interpret accords commercial business sense avoids absurdity(geoffreyl moore realtyinc motor league,2003 mbca ventas,inc sunrise eniorliving realestateinvestment onca test determination requisite consideration(s&1gareri trucking onyx corporation,2016 imposes contracts manifestation organizing principle obligations(bhasin [113 licence restricted fail. [114 aside follow fail fulfilling obligations. [115 theterms were,in entirety,as [116 press,and fulfilled atthe ofscope yet certain,that thatturner author. [117 30,2014,after part(exhibit"29 book, [119 implicit completely contemplated notamountto treatmentofthe subject. aware agreementto contract,thatthe uncertain [120 neither else [121 assertsthatthe himselfand otherterms term to"showcase project"and bound contractto give credit book's title arc. [122 role" fairly extensively. [123 concerned,i plain cannot objectively reasonably containing promises. [124 findings unnecessary awarded. vii [125 actions dismissed. viii costs [126 spoken agreed.

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