Quibec television airs a very popular situation comedy, "La Petite Vie." The genesis of the program goes back several years. Developed by actors Claude Meunier and Serge Thiriault (of "Ding and Dong" fame), the showms concept is a parody of family life. It was first presented live at "Club Soda" in Montrial, and then as a sketch on video. This turned into a television program that aired for three consecutive seasons on CBC.
A mail order business selling adult videos decided to produce an erotic pastiche of La Petite Vie. They were sued for copyright infringement.
The script for the video pastiche was rather thin--a few minutes of exposition in which the characters, who were clearly copied from La Petite Vie, are developed. This is followed by sexual activity of all types under the transparent pretext of a trance in which the character enters the "riflexologie irotique" that permits him to live out his fantasies.
The similarities between La Petite Vie and the erotic video pastiche were numerous in respect of characters, style of dress, general appearance, their manner of speech, elements of the set and some props. There were imperfect copies of the names of the La Petite Vie characters: ptpa became peupa, and mtman became meuman. There were also dissimilarities with respect to set and props.
The erotic video producer readily admitted in court that the ideas were borrowed, and obvious.
The legal test of copyright infringement is "substantial similarity," and this was the test that the judge applied. The judge stated that the similarities were significant in relation to set, costumes, general appearance of characters, as well as more or less disguised copies of their names, mannerisms, and manner of expressing themselves.
The judge noted, however, that the similarities did not extend to the scripts. He said that it was therefore important to determine whether the similarities in the characters themselves, as extensive or as limited as they may be, were protected by copyright. The judge summarized his task this way:
"(in a situation where the scripts of a dramatic work have not been copied, does) an unauthorized reproduction of a fictitious character drawn from (that) dramatic work constitute the reproduction of a substantial part of this work... ."
The judge rejected the claims of the owner of La Petite Vie, deciding in favour of the owner of the erotic video. He said:
"The characters of La Petite Vie, themselves instruments of caricature of daily life...do not present characteristics sufficiently original that they could, standing alone without script or direction, be said to be subject to copyright protection. It is what they are involved in, the words they speak, the staging of their actions, which give them life, that animate them and confer upon them their personality. (The erotic pastiche) borrows little or nothing of the words, the text or the plot of La Petite Vie, at least nothing of any importance. Artistic works such as cartoon characters ought not to be confused with characters taken from literary works, the latter generally having no independent life from that of the work itself..."