Will a Copyright Dispute Sink the Bluenose II (Or is it III?)

The Amazing Race Canada wrapped up a few weeks ago, and if you are a fan, it was pretty entertaining. But I keep thinking about the 8th episode, in which the teams visited Lunenburg, Nova Scotia, and were given a Canadian dime as a clue. I was a bit surprised at how many of the teams didn’t know that the boat (actually a schooner) on the dime was Bluenose, who is a pretty well-known vessel in Canada. But I would have been more surprised to find out that even one of the Amazing Race competitors had any idea that Bluenose is currently the subject of a copyright dispute, and that she and her various incarnations have been at the centre of a few controversies over the years.

Bluenose was designed by one William Roué and launched in 1921 in Lunenburg. The original vessel distinguished herself by winning several prestigious working fisherman races over the years, but when operating expenses became prohibitive, she was sold for use as a cargo ship in the Caribbean, where she worked until she sank near Haiti in 1946.

A new version, called Bluenose II, was constructed in 1963 using the original drawings. The Province of Nova Scotia purchased Bluenose II for one dollar in 1971 and used it mainly for tourism purposes. A trust called the Bluenose II Preservation Trust was set up for the maintenance and upkeep of the vessel, but ran into controversy when it registered various trademarks, including BLUENOSE and BLUENOSE II SHIP’S COMPANY STORE, for itself, apparently without the Province’s knowledge (Tall Ships Art Productions Limited v. Bluenose II Preservation Trust Society (2003), 2003 FC 1442). The marks have since been withdrawn (Trade-Marks Journal, July 03, 2013, p. 234). The Trust also began to sue other parties for using the name and image of Bluenose for various businesses and tourist items (Bluenose II Preservation Trust Society v. Tall Ships Art Production Ltd. (2003), 2003 NSSC 183). In the face of public disapproval and intervention on behalf of the Province, lawsuit was dropped, and the Trust was eventually formally relieved of its duties by the Province. However, it still took seven more years until the Trust transferred $1.2M in assets to the Province, albeit without opening its books to assure anyone that trust funds had been properly applied.

The ship eventually fell into disrepair, until a restoration project was launched in 2010. However, reports said that rather than a “restoration” this would instead end up being a completely new ship, as much of the original hull had been put through a wood chipper and discarded. There is again some controversy in this disposal, as some people feel that pieces of Bluenose might better have better been used, for example sold as souvenirs, for both sentimental reasons and to help recoup the $16M cost (including over $1M in cost overruns) of the restoration (Op. cit. #11).

The current copyright dispute was commenced by William Roué’s grandson and great granddaughter, with the Province of Nova Scotia and various companies involved in the restoration project named as defendants. The allegations are that the rebuild either infringes the copyright in the original design, contrary to s. 27 of the Copyright Act (R.S.C., 1985, c. C-42), if the rebuild is substantially similar to the original Bluenose, or infringes the moral rights of the designer, if the new vessel calling herself Bluenose II is not actually a substantial reproduction of the original ship. Various defences, including that copyright protection was not available to the original drawings, and that the plaintiffs are not the proper copyright owners, have been raised (Roué v. Nova Scotia (2013), 2013 NSSC 45).

Most of the court decisions in the current copyright dispute so far deal with procedural matters, including how the application should proceed (Nova Scotia v. Roué (2013), 2013 NSCA 94), and the timing of it (Roué v. Nova Scotia (2013), 2013 NSSC 102), some arguments over whether certain contracts must be produced to the Roués (Roué v. Nova Scotia (2013), 2013 NSSC 254), who could be discovered (Roué v. Nova Scotia (2013), 2013 NSSC 326), and of course a motion for costs (Roué v. Nova Scotia (2013), 2013 NSSC 322). The substantive copyright-based arguments will be raised when the trial sets sail, currently scheduled for April 2014.