The Federal Court of Appeal has upheld a finding that the Royal Canadian Legion did not infringe an author’s moral rights by selling poppy patterned puppies under allegedly false authorship information. In the early 2000s, Mr. French sold 150 000 toy stuffed dogs patterned with a poppy design to the Legion for re-sale. In 2020, Mr. French discovered the Legion still had a version of the puppy offered in their catalogue with a descriptor that the toy was “developed by the Legion.” Mr. French sued the Legion for copyright and moral right infringement. Specifically, Mr. French claimed that authorship of the design was misattributed to the Legion.

In the first instance, the Federal Court found that the Legion was not liable for copyright infringement in view of section 64(2) of the Copyright Act. Section 64(2) sets out that once a useful article is mass produced (more than 50 copies), it is not copyright or moral right infringement to reproduce the article or to do with the article anything the copyright owner has the sole right to do.  The general purpose of the section is to prevent copyright being used in the place of industrial design registration in order to take advantage of the longer term of copyright.

While Mr. French argued the Federal Court had erred in its application of section 64(2) in finding that section 64(2) applied to all aspects of infringement (including false authorship), the Federal Court of Appeal confirmed that since the Legion could not have infringed Mr. French’s copyright they also could not infringe his moral rights. The appeal was dismissed.

The full decision can be found here.