August 14, 2019
“Anne of Green Gables” has been a part of the Canadian cultural zeitgeist since 1908, when the original novel was written by Lucy Maud Montgomery. Set in the late 19th century, the story focuses on the exploits of Anne Shirley, an 11-year-old girl who is mistakenly sent to the fictional town of Avonlea, Prince Edward Island. Montgomery’s novel has since been adapted numerous times across television, film and theatre.
Copyright in Montgomery’s original story lapsed into the public domain in 1992, 50 years after the author’s death. However, a 2019 court fight between subsequent adapters of the novel presents interesting questions concerning the bounds of copyright protection for decisions concerning original scenes, cinematography, staging, locations and set designs made by producers of intellectual property.
In Sullivan v Northwood Media Inc, 2019 ONSC 9, producer Kevin Sullivan (“Sullivan”) alleges that the CBC/Netflix series “Anne with an E” unlawfully copies certain elements of his “Anne of Green Gables” themed films and TV productions including the 1985 television series, “Anne of Green Gables” and the 1990 television series, “Road to Avonlea”. Specifically, Sullivan alleges that Northwood Media Inc. (“Northwood”), the producer of the CBC/Netflix show, and Moira Walley-Beckett, the show’s writer, have infringed his intellectual property rights by copying dialogue, settings, themes and concepts from his prior series that were not in Montgomery’s original story.
For example, Sullivan cites Northwood’s decision to set “Anne with an E” in the late 1890’s instead of the 1870’s, the decade in which the story was originally set. Sullivan argues that the choice of decade was an original authorship decision he made for his series, because the 1890’s provided a more interesting cinematic setting due to the new technologies which had become available, such as steam trains. Additionally, early episodes of the Netflix series opened with the phrase “true friends are always together in spirit” carved into the branch of a tree. Sullivan maintains that he was the original author of this line, and that its placement in the title sequence of Northwood’s production demonstrates that it was intended as an important aspect of Northwood’s show. Further, Sullivan disputes Northwood’s decision to develop the Hammond family as original characters, as those characters made significant appearances in the 1985 series but were only lightly referenced in the original novel.
The Copyright Act provides that the owner of a copyright has the sole right to reproduce the work or any substantial part thereof. In the 2013 Supreme Court of Canada decision of Cinar Corp v Robinson (2013 SCC 73), the Court held that “A substantial part of a work is not limited to the words on the page or the brushstrokes on the canvas. The Act protects authors against both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work.” Therefore, this case will likely turn on whether the dialogue, scenes, cinematography, staging, locations, and directions allegedly shared by Sullivan’s “Anne of Green Gables” and CBC/Netflix’s “Anne with an E” constitute a “substantial part” of the latter series. While this question remains unanswered, the eventual decision may help determine which creative choices are, and are not, protected by copyright.
Note: this is an ongoing action and none of the allegations or claims have been proven or decided.
Authors: David Zitzerman, Tara Parker and Duncan Lurie