Jules Jordan Video Inc. v. Elmaleh, [2009] FC 488.
I thought we’d expand our reach and take a look at a rather fun judgment issued on May 11 by the Honourable Mr. Justice Harrington of the Federal Court in Ottawa, Ontario. The plaintiffs were a Los Angeles corporation that wrote, produced, directed (and performed) adult movies, and the sole shareholder/employee of the company. The plaintiffs alleged copyright infringement in thirteen works, which were registered in both the United States and Canada. The plaintiffs filed two suits, one in Canada and the other in California, seeking damages in the U.S. and an injunction in Canada.
The defendant was found liable for violating the plaintiff’s right of publicity in the California action, but the copyright claim was dismissed. The plaintiff had registered the works in his personal name, instead of his company’s, and the federal district court in California found that the registration was invalid. In the U.S. registration is considered either a case process rule or jurisdictional (see Reed Elsevier v. Muchnick); a plaintiff can file suit in Canada without registration, but can only seek an injunction against an innocent infringer. See Canadian Copyright Act Section 39.
The Defendants in Jules Jordan Vide, Inc. v. Elmaleh filed a motion for summary judgment, arguing that one of the two parties, either the individual or the company didn’t have standing. The Court denied and found with that while only one of either the individual or the company owned the copyrights, the motion was best handled at trial.
[The individual]’s “admission” that he owns the copyright is of little value. According to Phipson on Evidence: “Admissions are receivable to prove matters of law…though…these are generally of little weight, being necessarily founded on mere opinion (section 4-11, p. 78)”. The fact that Mr. Gasper is shown on the Canadian Register as owner merely creates a rebuttable presumption in his favour (David Vaver, Copyright Law (Toronto: Irwin Law, 2000) at 247). [Ed: similar to the U.S.]
There are any number of ways in which the relationship between Mr. Gasper and his company could be characterized in law. There is not enough material in the record to allow me to come to any conclusion. For instance, Jules Jordan, as employer, may be the owner pursuant to s. 13 of the Copyright Act, should the necessary conditions have been fulfilled.
Their relationship may be a joint venture, principal and agent, assignor and assignee, or licensor or licensee, be it on an exclusive or non-exclusive basis. Section 36 of the Copyright Act contemplates that an assignor may be named as a co-plaintiff. One might also have to consider the distinction between legal ownership on the one hand, and beneficial ownership on the other. See F.C. Yachts Ltd. v. Splash Holdings Ltd., 2007 FC 1257.
The financial arrangement between the plaintiffs was not probed. How was income treated? Did it all go to Jules Jordan, except for Gasper’s salary? Standing to sue is not a question to be answered simply by looking at the Copyright Register.
Recent scholarship from the 
