Winkler v. Hendley

Winkler v. Hendley

Because Kelley held The Black Donnellys out as a factual account, the questioned passages are treated as asserted facts in which there is no copyright; plaintiffs cannot reverse that representation to claim copyright in those 'facts.' Applying established tests (holistic substantiality under Cinar and summary judgment standards under Hryniak) and admitting Fazakas’ expert evidence despite familial ties, the Court concluded Hendley did not copy a substantial part of either work and dismissed plaintiffs’ infringement claim; the podcast transcript was excluded as late and irrelevant.

Citation
2021 FC 498
Parties
Plaintiffs: John Winkler and the Estate of Theresia Winkler by her estate trustee John Winkler; Defendants: Nate Hendley and James Lorimer & Company Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
27 May 2021
Procedural Posture
Copyright Infringement (books) / Summary Judgment (final Judgment)
Outcome
Plaintiffs' motion for summary judgment dismissed; Plaintiffs' motion to tender podcast transcript dismissed; Defendants' motion for summary judgment granted; Action dismissed.
Legal Topics
Substantial Part Test, No Copyright in Facts, Expert Admissibility and Independence, Summary Judgment Procedure, Remedies and Costs
Source Language
English
Copyright Intellectual Property Evidence Civil Procedure Substantial Part Test No Copyright in Facts Expert Admissibility and Independence Summary Judgment Procedure +1 more

Case Brief

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Parties

John Winkler and the Estate of Theresia Winkler by her estate trustee John Winkler

Plaintiffs

Nate Hendley and James Lorimer & Company Ltd.

Defendants

Procedural Posture

Copyright Infringement (books) / Summary Judgment (final Judgment)

Legal Issues

  1. 1 Is the matter appropriate for summary judgment?
  2. 2 Should the podcast transcript be admitted?
  3. 3 Is expert evidence of Raymond Fazakas admissible?

Ratio Decidendi

Because Kelley held The Black Donnellys out as a factual account, the questioned passages are treated as asserted facts in which there is no copyright; plaintiffs cannot reverse that representation to claim copyright in those 'facts.' Applying established tests (holistic substantiality under Cinar and summary judgment standards under Hryniak) and admitting Fazakas’ expert evidence despite familial ties, the Court concluded Hendley did not copy a substantial part of either work and dismissed plaintiffs’ infringement claim; the podcast transcript was excluded as late and irrelevant.

Court Disposition

Plaintiffs' motion for summary judgment dismissed; Plaintiffs' motion to tender podcast transcript dismissed; Defendants' motion for summary judgment granted; Action dismissed.

Orders

  • Plaintiffs' motion to tender podcast transcript dismissed.
  • Plaintiffs' motion for summary judgment dismissed.