On May 29, 2023, the Federal Court of Canada (the Court) in French v The Royal Canadian Legion2023 FC 749, dismissed Leonard French’s (the Plaintiff’s) action for copyright and moral rights infringement relating to its copyright in a stuffed animal, due to the Defendant, the Royal Canadian Legion, being shielded by subsection 64(2) of the Copyright Act (the Act ).

The Plaintiff is the creator and holder of copyright in the work the “Poppy Dalmatian Puppy” (Poppy Puppy), which is a stuffed animal modelled after a Dalmatian dog. Although the Plaintiff initially licensed and supplied the Poppy Puppy to the Defendant, the Plaintiff argued that the Defendant later switched to an alternative supplier and induced the supplier to create and supply Poppy Puppy toys, and by doing so, infringed the Plaintiff’s copyright.  Further, the Plaintiff alleged that the Defendant claimed to be the developer of Poppy Puppy in advertisements promoting the toy, breaching the Plaintiff’s moral rights. This led the Plaintiff to bring a simplified action for copyright and moral rights infringement against the Defendant, seeking an award of damages and a permanent injunction restraining the Defendant from infringing copyright in the Poppy Puppy.

In response, the Defendant argued that the deemed non-infringement provisions in subsection 64(2) of the Act shielded it from the Plaintiff’s claims. Under subsection 64(2), the Defendant took the position that the Poppy Puppy is a “useful article” and there have been more than fifty Poppy Puppies produced, which meant that there could be no copyright or moral rights infringement as alleged by the Plaintiff. However, the Plaintiff argued that the Poppy Puppy is not a useful article that serves a utilitarian function, but a carrier for artistic matter. Alternatively, the Plaintiff said that the matter falls under one of the exceptions in subsection 64(3)(a) and (e) of the Act.

The Court concluded that the Poppy Puppy is a useful article with a function: it is a plush toy made to be played with by children. Additionally, the Court found that the exceptions in subsection 64(3) were inapplicable. The Plaintiff’s copyright subsisted in the Poppy Puppy toys as a whole and not as a “graphic or photographic representation applied to an article” as required under subsection 64(3)(a); “nor as a representation of a real or fictitious being ‘applied to an article as a feature of shape, configuration, pattern or ornament’” as required under subsection 64(3)(e).

Therefore, the Court found that the Defendant was protected from the Plaintiff’s copyright and moral rights infringement claims by operation of subsection 64(2) of the Act and dismissed the action.

Summary By: Victoria Di Felice  


23 06 28

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