Photo by Max Cortez (Unsplash)
Ryan Erdman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law .
In 2015, Inside Out captivated audiences with its creative insight into the emotional landscape of a pre-teen girl named Riley. The film’s main characters are manifestations of young girl’s internal emotions that attempt to help her navigate various experiences and challenges in her life. The brilliance of the film’s storytelling was realized through its depth and the way it resonates with individuals of all ages. Winning the Academy Award for Best Animated Feature that year, it has grown to be regarded as one of the best animated films of all time.
While the general and critical response was overwhelmingly positive, one individual who did not experience the same initial “joy” was Damian Pourshian, a graduate of Sheridan College in Oakville, Ontario. In July 2018, Pourshian commenced an action against Walt Disney Pictures Inc., Pixar Animation Studios, and four other subsidiaries claiming that they infringed on his copyright to a film he initially conceived as a high school student. The claim was brought under sections 3 and 27 of Canada’s Copyright Act.
In 2000, Pourshian, then a film student at Sheridan College, wrote the screenplay and produced a short movie similarly titled Inside Out, where the protagonist was guided by their personified internal organs. According to Pourshian, the film was “widely shown” at the school, and the defendants, having a “close relationship” with Sheridan College, would have had access to his film on numerous occasions. Further, he claims former students at the college now working with Disney and Pixar were tied to the production.
The recent decision did not surround the substance or efficacy of the infringement claims, but revised a preliminary jurisdictional order. The U.S.-based defendants initially brought a motion to stay the action on the basis that Ontario lacked jurisdiction. In October 2019, a Master granted the order against all defendants, except for Pixar, Walt Disney Pictures Inc., and Disney Shopping Inc.
Pourshian appealed, and the remaining defendants cross-appealed the decision on the basis that the Master erred in applying the test for determining if the court has jurisdiction over claims against foreign defendants. The test, as established by the Supreme Court of Canada in Club Resorts Ltd. v Van Breda, looks to determine if there is a “real and substantial connection” between the subject matter of the litigation and the chosen forum. To do so, the court will determine whether there is a presumptive connecting factor (established or novel) between the claim and the jurisdiction. As noted in Van Breda regarding tort claims, connecting factors that prima facie entitles a court to assume jurisdiction include the defendant residing or carrying out business in the province, the tort being committed in the province, or a contract connected to the dispute being made in the province.
The court found that the Master made at minimum three legal errors, including failing to analyze the meaning of “carrying on” business in Ontario and disregarding evidence filed by the parties. Seeing no utility in sending the case back, the court proceeded to determine jurisdiction in relation to each individual defendant. Pourshian argued that Ontario had jurisdiction because it was the “jurisdiction of reception” for the movie, the claim was in respect of (intellectual) property in Ontario, and some of the defendants carry on business in Ontario.
Most significantly, the court clarified that copyright infringement is “essentially a statutory tort,” such that the Van Breda analysis is correctly applied, and the analogous connecting factor is whether the alleged copyright infringement occurred in the jurisdiction where the action was brought. Relying on SOCAN v Canadian Association of Internet Providers, they note that the infringement can occur both where the communication was transmitted from and where it was received. Subsequently, the court looked to the main issue of whether Pourshian’s claim established a “good arguable case” that each defendant played a role in authorizing the “transmission” or distribution of the film in Ontario.
Ultimately, the court found sufficient evidence that Ontario had jurisdiction in relation to six of the defendants, largely due to direct connections to the film’s production or its distribution to third-party providers. This reversed the original decision in relation to three defendants. The two remaining defendants, Walt Disney Company (the parent company to the remaining defendants) and American Broadcasting Companies, Inc., successfully rebutted the presumption by proving a lack of involvement in the production and distribution of the film in Ontario.
In what should be an extremely intriguing copyright case moving forward, Pourshian seeks a declaration that he owns the intellectual property to the screenplay, live theatrical production, and the short film Inside Out, and that the defendants infringed his copyright through their production and distribution of the Disney film. In addition, he is seeking a permanent injunction and damages, which would be significant given that Inside Out grossed more than $850 million worldwide. Interestingly, Pourshian has been unsuccessful in a similar U.S. claim, voluntarily withdrawing a 2018 California lawsuit two months after it was filed.