No Capitalizing On Nostalgia! Ontario Court Finds Copyright Infringement Of Indicia Of Closed High Schools

On September 18, 2024, the Ontario Superior Court of Justice (the Court) in Lakehead District School Board v. Mauro et al., 2024 ONSC 5174, held on a summary judgment motion that Ms. Mauro (the Defendant) infringed the Lakehead District School Board’s (the Plaintiff) copyright and moral rights in the school colours, mascots, and logos associated with its historic high schools.

The Plaintiff alleged that the Defendant infringed its copyright by producing and selling clothing featuring the names, mascots, logos, and colour schemes of secondary schools previously under its administration.  The Plaintiff moved for summary judgment arguing that there were no genuine issues requiring a trial.

The Court held that this case was appropriate for summary judgment as it would provide a proportionate, expeditious, and less expensive means to achieve a just result.

The Defendant alleged that the Plaintiff did not own the copyright by virtue of authorship, registration, or an assignment or licensing agreement.  However, the Court found that the creation of artwork to identify previous or current schools was done in an employment context under the authority of the Plaintiff, which led to ownership of copyright through section 13(3) of the Copyright Act.  The Plaintiff has authority under the Education Act to perform duties relating to the proprietary interests in artwork identifying schools under its administration.

The Court held that under a holistic examination, the Defendant’s products were created to “evoke local nostalgia for the now-closed Thunder Bay high schools” by using school colours, mascots, logos, and abbreviations to identify specific schools.  By failing to seek permission from the Plaintiff prior to creating these designs, the Defendant infringed the Plaintiff’s copyright.

The Court issued declaratory relief, disgorgement of profits, a permanent injunction, delivery of all infringing works in the Defendant’s possession, and costs.  The Court dismissed the Plaintiff’s request for punitive damages, concluding that the Defendant immediately responded once the matter came to her attention, and only sold the goods for a brief period during peak season, with modest revenue.

Summary By: Amy Ariganello