Co-authored by Dino Clarizio
On January 31, 2025, the Federal Court (per Gascon J.) dismissed a motion for summary judgment in a copyright infringement action involving a “Rosie the Riveter” design because the moving party failed to prove that there was no “genuine issue” for trial. The Court found that, on the facts and law, the action was not “clearly without merit”.
Cavan Speciality Advertising Ltd. v. Les Promotions Universelles Inc., 2025 FC 205
Background
Since WWII, Rosie the Riveter has symbolized female solidarity in North American labor movements, appearing on various promotional items and in the public domain. In 2016, Cavan Advertising Ltd. (“Cavan”) obtained a license to use a modern photo of Rosie featuring a lookalike of the original character with a sleeve tattoo and a brightly coloured camisole. In 2019, Cavan created and published a new work (the “Cavan Design”) featuring diverse women in the “Rosie Pose”, with roses and wheat stalks in the background, and the tagline “Sisterhood – Solidarité feminine” beneath the Rosie image.
In May 2022, Les Promotions Universelles Inc. (“LPU”) was hired by a trade union to create a multi-Rosie design for use on hoodies using the Cavan Design as inspiration. LPU told the union that it couldn’t use the Cavan Design, but that it would create an original design based on it. LPU’s design featured five diverse Rosies arranged in a circle, with a Black Rosie in the center, a White Rosie with a tattoo to her left, three roses at the bottom, and the words “sisterhood” and “solidarité feminine” wrapped around the image. The union approved the design and placed an order for 350 hoodies for their annual women’s convention.
In October 2022, Cavan approached LPU alleging the LPU Design infringed its copyright in the Cavan Design. LPU agreed to modify its design by replacing the tattoo on the White Rosie’s arm with a tattoo of the union’s logo, inserting wheat stalks beneath the roses, and adding the words “strength” and “force” to the existing text (the “LPU Design”).
In April 2023, Cavan filed an action against LPU for copyright infringement. LPU filed a motion for summary judgment to dismiss the action.
LPU’s motion
In its motion for summary judgment, LPU argued that Cavan’s infringement claim was baseless and bound to fail because elements of the LPU Design that are in common with the Cavan Design were merely conventional or generic elements or common words. Specifically, LPU argued that any similarities between its design and the Cavan Design were elements that were in the public domain, which were not protectable under copyright law.
The test for summary judgment in the Federal Court
In the Federal Court, a party may move for summary judgment where there is no “genuine issue for trial”. The Federal Court of Appeal (“FCA”) has held that there is no genuine issue for trial if there is no legal basis for the claim based on the law or the facts, or if the motion judge has all the evidence required to fairly and justly decide the dispute. Put another way, the case must be “clearly without legal foundation”. Although the initial onus is on the moving party to prove there is no genuine issue for trial, both parties are required to “put their best foot forward” because the Court will presume that no additional evidence would be filed if the case were to go to trial.
Is it clear that the LPU Design infringes Cavan’s copyright?
The Court first noted that LPU did not contest that the Cavan Design is a copyrighted work and that Cavan holds the copyright in it. The first issue, therefore, is whether it is clear that the LPU Design does not infringe Cavan’s copyright by reproducing a substantial part of the Cavan Design.
The notion of reproducing a “substantial part” of a copyrighted work is flexible. In determining if a substantial part of a work was reproduced, the Court makes a qualitative and holistic assessment of the original work and the alleged infringement, rather than looking at individual elements of the works. The Court held that a particular combination of elements in the public domain can become an original work or the expression of an idea subject to copyright protection.
In this case, the Court assessed the cumulative effect of the alleged similarities between the Cavan Design and the LPU Design to determine if they constitute a “substantial part” of the original author’s skill and judgment. The Court accepted that taken individually, the elements of the original Rosie, a tattooed, diverse Rosie, generic feminist symbols such as roses, and common words such as “sisterhood” and “solidarité feminine”, were mere ideas from the public domain. However, the Court noted that the specific combination of these generic elements in the Cavan Design appeared to have been reproduced in the LPU Design.
Another design feature of note was the tagline used in the Cavan Design: “Sisterhood – Solidarité féminine.” LPU argued slogans such as this cannot be protected by copyright, but the Court agreed with Cavan that “solidarité feminine” was not a common expression. Rather, “solidarité feminine” was an unusual translation of the “sisterhood” tagline. On this basis, the Court could not dismiss the possibility that Cavan’s tagline in its design was the subject of copyright.
LPU’s defences
Based on the evidence, the Court concluded that an inference of copying can be drawn because LPU had access to the Cavan Design and there were sufficient similarities between the two designs. The Court then assessed whether two defences raised by LPU “clearly rebutted” this inference of infringement.
The first defence was that any similarity between the two designs was solely due to the use of conventional ideas or elements. The Court readily discounted this defence, pointing to the copying of the tagline as an example that the similarities were not solely due to common elements.
The second defence raised by LPU was that its design was an independent creation. The Court recognized that the LPU did not copy several elements of the Cavan Design, but the Court noted that LPU appeared to have reproduced the “style” or arrangement of the Cavan Design’s features as well as its tagline. This was sufficient to find that “the LPU Design cannot clearly be considered as an independent creation.”
Conclusion
The Court held that it could not conclude, based on the record, that the apparent similarities between the LPU Design and the Cavan Design stemmed solely from sources in the public domain. Therefore, LPU did not meet its burden that there was no genuine issue for trial.
Although the Court dismissed LPU’s motion for summary judgment, it recognized that the case may be suitable for a motion for summary trial, which is a different procedure based on a different evidentiary standard. The Court noted that the evidence filed by the parties was already exhaustive and any additional findings of fact could be made based on the record.
LPU has 30 days to appeal to the Federal Court of Appeal.