Denny v. Dennis et al Date:, 2016 BCPC 152

Citation: Denny v. Dennis et al Date: 20160524 2016 BCPC 0152 File No: 1223037 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: MARTIN DENNY CLAIMANT AND: DIANNE DENNIS and TYRONE MARTIN POLANSKI DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.A. DYER Appearing on his own behalf: M. Denny Appearing on their own behalf: D. Dennis and T. Polanski Place of Hearing: North Vancouver , B.C.

Dates of Hearing: Aug 30 and Dec 17, 2013; Jan. 17, Jun 11, Dec 29 and 30, 2014; Jul 7 and 8, Sep 22 and 25, Oct 5 and 7, 2015 Date of Judgment: May 24, 2016 [ 1 ] This action commenced April 25, 2012 is a claim by one Martin Denny for certain relief he asserts he is entitled to by reason of a contract he made with one Dianne Dennis in 2009 whereby he was to be a cameraman employed by her to shoot a feature length film called Forgive Me Father (“FMF”) which script she created. [ 2 ] His Notice of Claim seeks money damages in the amount of $22,975.00, what he describes as “full rights to agreed credits” and in subparagraph (c) “in lieu of the above, full rights to all footage digital images and audio and computer editing - files to be released to Focal Point Communications (Mr.

Denny’s business style of cause) to be re-edit the production entitled “FMF” and to sell in order to recover monies owed”. [ 3 ] Ms. Dennis (a partner in a partnership called Brown Eyed Angel Productions (“BEAP”) asserts in her defence variously: (

a) No money is due to Mr. Denny until the film is sold. (

b) There are major problems with the footage. This has given rise to a significant counterclaim on her part for the costs to edit out the problems that occurred during filming. (

c) Certain “credits” sought by the claimant are either not standard in the film industry or earned by Mr. Denny. (

d) Mr. Denny must return the film footage he has retained. (

e) The counterclaim alleges Dianne Dennis executed the written contract in issue on October 26, 2009 under duress and argues thus it is voidable and cannot be relied on by the claimant. [ 4 ] At the material times, the defendant Ms. Dennis was and is the sole owner of the copyright in FMF now renamed “Evil Has Come to Prey”. I will refer to the film as “FMF” in these reasons. She is the author of the film script. Mr.

Denny gave some evidence at the trial that during the course of filming in June and July 2009 over 14 days, he suggested some changes to the various scenes but he does not in this action claim to be a joint owner of the copyright in the film. [ 5 ] There was no evidence at the trial that the film was at any time sold or distributed to anyone so that its creation and production can thus on this measure be said to be a viable economic venture. It has really earned no revenue of any significance to date. It may be that this is because no concerted efforts have been made by Ms. Dennis and her partner Mr.

Polanski to aggressively market it to anyone. There is no allegation or claim in Mr. Denny’s action suggesting that Ms. Dennis had a contractual obligation including pursuant to potentially an implied term to use her best efforts to market FMF so as to earn revenue from which he would then be paid the amount he claims and in breach of same declined or refused to do so. There is only a term in their agreement that Ms. Dennis would keep Mr. Denny informed of all sales of the film (see clause 7). [ 6 ] At all material times, Ms. Dennis was as well the producer of the film and as such Mr.

Denny agreed was in a position to enter into all contractual relationships with persons including himself and to make decisions as to the content of the film, e.g. which scenes would be included and which would be left out. In essence, she was senior to him on this project. [ 7 ] On August 30, 2013 at the trial, Mr. Denny testified that he was not seeking the above money damages apparently accepting that the film had by then some 4 years after shooting made no money to speak of. He did as set out above assert that in lieu of a financial payment he would like to obtain rights to use the footage he shot.

As well he wanted four credits on FMF which I will deal with in more detail below. He candidly admitted there was nothing in any written contract with Ms. Dennis that entitled him to his claim (c) - full rights to use the footage. In addition he also admitted that he understood that Ms. Dennis owned all the copyright in “FMF” and said that without an assignment of her copyright - he understood he could not use the footage to create a film and seek to market it himself to earn money to reimburse himself. [ 8 ] On November 25, 2013 just prior to the start of his cross-examination by Mr.

Polanski, he then seemed to suggest that if he was successful in I understood this lawsuit, he wanted as per the written contract a percentage of the sales as per claim (

a) in his Notice of Claim (but not the full amount namely $22,975.00) and sought as well to recover the costs he had incurred in prosecuting this action. [ 9 ] In his closing argument filed November 29, 2015, he claimed (1) film credits, (2) not the amount in (

a) in his Notice of claim at this time, (3) an order that he could use the footage assumedly which he has retained to create a “show reel” to show potential clients his creative and technical capability which he says Ms. Dennis agreed to and (4) his costs. I will assume this is his final and current position. [ 10 ] I should mention that Tyrone Martin Polanski was the leading actor in FMF as well as a director as was Ms. Dennis. Mr. Polanski at all material times after 2000 lived with Ms. Dennis and was very involved in the making of FMF from the outset. [ 11 ] FMF was an amateur low budget film.

It was filmed very significantly but not entirely on the North Shore. According to Mr. Denny there was some 21 hours of filming done of some 45 scenes involving approximately 250 set ups over 14 days commencing June 1, 2009 and ending either July 4, 2009 or September 17, 2009. No scenes were shot between July 4 and September 17, 2009. No one was paid for their time and effort by Ms. Dennis including Mr. Denny and all of the crew and actors. Mr. Denny suggested in an email

October 14, 2009 to Ms. Dennis that there were around 60 odd people who were on deferred payment on the project. One set used was the home of one Linda Burrough who first met Ms. Dennis through Ms. Dennis’ dog grooming business and volunteered her place as a set when Ms. Dennis indicated in casual conversation with her that she was looking for a place to shoot parts of the film she had created. There is no evidence she charged anything for the use of her home. FMF is described as a fictionalized comedy-drama.

It was to be a 90-minute feature length film and the defendant hoped to eventually distribute it on the “big screen” (I assume in movie theatres) as well as for broadcast on television and in DVDs. (See November 22, 2010 email from Ms. Dennis to Mr. Denny, Exhibit 3, pp. 323-325.) In this same email, Ms. Dennis states she hopes to send it to the Cannes Film Festival. There is no evidence this ever occurred.

FMF has never been reviewed by any professional or other movie reviewer or film critic and no such evidence was placed before the court at trial. [ 12 ] I have noted above that there is really no evidence that this film has been successfully marketed to the date of the trial and earned any material amount of revenues. [ 13 ] On a related and in my view critically important point, there was no evidence as I have said led by anyone at this lengthy trial that FMF, now “Evil Has Come to Prey” is a good creation and could or would, if properly advertised and exposed in the film market, be any kind of commercial success so as to make any money at all.

One cannot in my view on the facts of this case simply assume that it is a good film or even a saleable film. Again, no film critic or film distributor or anyone in the commercial film business who had seen the finished product so to speak was called to give the court any opinion as to its chances of being successfully marketed and sold anywhere once finalized by Mr. Polanski. It is not appropriate for a trial judge to form an opinion on such matters even after a review of the entire work.

Judges know something about the law but few of us can profess any expertise in assessing the artistic merit of any given film and most importantly its prospects of success when marketed. [ 14 ] Mr. Polanski and Ms. Dennis as equal partners in BEAP seemingly made a decision both prior to the start of this trial and indeed during it not to market the film in any significant way and thus were unable to give any evidence as to a proven track record of earnings. [ 15 ] Mr. Polanski testified that he and Ms. Dennis felt Mr.

Denny would go out of his way to somehow sabotage it if they tried to distribute it prior to the trial and thus elected to await my decision before doing so. I am thus dealing with a creative work - likely both a “cinematographic work” and a “dramatic work” pursuant to ss. 2 and 3 of the Copyright Act RSC 1985 c. C-42 that I have no evidence to help me find whether when marketed, it might be a success or a failure.

Whatever I might think of it has no bearing in my opinion in assessing the parties various claims. [ 16 ] I turn now to summarize the parties evidence as to the events leading up to the October 26, 2009 contract with a view to making certain findings of fact as to the terms of the contract made between the parties. [ 17 ] Mr. Denny was asked on April 28, 2009 to provide Ms. Dennis with particulars of his charges and responded in an email of April 28, 2009 as follows: Sorry about the delay.

I think a realistic price for my time on this project is as follows: 1) Production: Includes my time as Director of Photography and assisting the director as requested in our first meeting, as well as use of my professional equipment is $100.00 per hour. 2) Preproduction Consulting: $50.00 per hour 3) Post Production Consulting: $50.00 per hour Now Dianne, I want to stress first and foremost, while these are realistic prices, there is no guarantee that I will receive one cent from this project. It might be at the end of the day that I may only receive the equivalent of $10.00 per hour, or perhaps $20.00.

We will not know what we can earn for our efforts until we are able to sell the film. That’s the risk we take. As such if we are successful, then the above fees will not be an onerous burden. However I would like to be paid of my out of pocket expenses. These will be: Tape stock: Fuji HDV 60M = $10.00 each. Running costs for Production Van .50 cents per kilometer. I hope this is clear and acceptable. Please feel free to phone me should you have any questions.

I’m ok with June 1 st start. It sounds like we are looking at doubling or even tripling the shooting time (from the original ten day estimate). If this is the case, then scheduling could be an issue. All the best and I look forward to working with both you and Tyrone. (Emphasis added.) [ 18 ] The same email listed the type of camera he intended to use and other equipment such as a matt box and a Sony 8 inch location monitor as well as various other items of movie making equipment all to be included in the prices quoted. Thus Ms.

Dennis knew what equipment he intended to use before he ever commenced filming. [ 19 ] Ms. Dennis responded on May 1, 2009 as follows: Tyrone and I are good with your pricing. We have to sell the movie for a price that will cover you. Are you going to write up and send a contract with info on last email re price for you? Sunday I will send the scene setup, location information and one last copy of the script with changes. We are good to go June 1 st and will do the scheduling next week and then email it to you. Please call when you get a chance. Cell [number deleted] re to talk about locations I have secured.

Thank you for your time! [ 20 ] Thus Ms. Dennis then contemplated that these agreed upon particulars should go into a more formal contract which later occurred in part on October 26, 2009. I note Ms. Dennis never asked to view any of Mr. Denny’s creative cinematographic work before hiring him. As well she did not object to paying him his out of pocket expenses before any sales of FMF were made. [ 21 ] In her initial April 28, 2009 request she stated in part: It doesn’t make sense for you to spend your valuable time on this script unless everything is agreed on.

Also I need a confirmation that we can start filming on June 1 st since the actors are ready to go. I can’t hold them back longer than that. Some of them have changed their vacations etc. to accommodate being in the movie. [ 22 ] The actual filming started on June 1, 2009. Mr. Denny says he commenced doing directing work on the sets starting on June 2, 2009 and did so daily for the next 13 days with the complete concurrence of Ms. Dennis and Mr. Polanski.

It was not discussed on June 2 that he would receive an increment in his camera work fee for this additional directing work which was performed at the same time he did his camera work. [ 23 ] In his direct evidence he testified that on the 3 rd shooting day about June 5, 2009, he and Ms. Dennis orally agreed that he would receive an extra $50.00 an hour to direct only on the set. This additional amount was not thereafter referred to in an email as he trusted Ms. Dennis. In an email from Mr. Denny to Ms.

Dennis on October 16, 2009 wherein he responded to certain questions she put to him, there is the following: I am not sure (if you could explain please) what the $150.00 per hour price includes for Director of Photography since we originally, verbally agreed on $100.00 per hour in our first meeting. [ 24 ] Mr. Denny responded:

$100.00 for DoP $50.00 for Directing. This was discussed and agreed at during our meeting at the Tim Horton’s on 28 July. Actually the D0P fee was more than verbal. Please see my email to you on 28/4 and your reply on 1/5. [ 25 ] In his cross-examination by Mr. Polanski, he testified that he became director on the film by about the 4 th or 5 th day of the shoot. This would have been either June 9 or 15, 2009 (see Appendix A to October 26, 2009 contract). He also then said he spoke to Ms.

Dennis on the telephone about all the directing work he had done and they agreed he’d be paid an extra $50.00 per hour for when he was directing. This discussion was in mid-June 2009 about a third of the way through the shoot. [ 26 ] He testified he was to be the director and became same on set by default because Mr. Polanski who was to be the director was too busy acting to do this work. He “dropped the ball” for whatever reason so Mr. Denny took over this responsibility. It was understood he was to get a credit on the film as a director on set or location.

In chief he said he kept track of all his directing time which included nothing for June 1, 2009 when he only did camera work. His claim is set out in Appendix A to the written contract which excludes 4 hours on September 17, 2009 and is some $7,250.00. In error this amount includes 9 hours at $50.00 hour for June 1, 2009 which $450.00 should he said be deducted leaving his claim for additional director’s fees at $6,800.00. The total fees on Appendix “A” thus become $22,525.00. [ 27 ] On June 3, 2009 in an email Ms. Dennis advised Mr.

Denny in part as follows: First I would like to say that you are doing a phenomenal job as DOP for our movie! I know you are working extra hard on this project. DOP means Director of Photography. [ 28 ] On June 4, 2009 in an email to Mr. Denny she said this in part: Sorry you are having to do so much directing because of Tyrone acting so much in the movie but on the full cup of coffee side you are adding so much uniqueness and professionalism to the movie! You will be getting a Directing credit on the movie as well as DOP.

I told him in the beginning he would have a hard time directing since he has to be acting a lot. [ 29 ] In cross-examination Ms. Dennis said rather unconvincingly that she ought to have said a Director of Photography credit. I find as a fact that Mr. Denny did direct FMP on scene locations on the set and that Ms. Dennis was happy with his work as such and did agree to pay him an additional $50.00 per hour for this effort. [ 30 ] Early on, Mr. Denny testified that part of what he did on the set was to make some suggestions as to script changes which were approved by Ms.

Dennis - this script’s only author and as well by Mr. Polanski. This evidence is corroborated by her two emails to Mr. Denny and Mr. Polanski (Tyrone Martin) on June 5, 2009 in part as follows: Four scenes I am writing and inserting into the script shortly so it will tie certain parts of the script together as per Martin Denny’s fabulous, brilliant suggestion. and later: The following short changes have already been added to the script re; at Martin Denny’s brilliant tie in of characters. [ 31 ] On June 8, 2009 Mr. Denny was suggesting changes to the films daily call sheets which Ms.

Dennis approved “making it easier on us all”. [ 32 ] On June 11, 2009 Ms. Dennis emailed Mr. Denny in part as follows: You are the first person we go by when scheduling since without you there is no movie. Fabulous job you are doing. The role of Director goes to you and Tyrone on the movie credits. Thank you for putting one million percent in this movie! [ 33 ] On June 18, 2009 Mr. Denny emailed Ms. Dennis asking if some night shots could be done to get footage that would look more “gritty” and realistic as compared to daytime shooting.

He said “a couple of night scenes will look good and organically help establish the flow of time”. This is some evidence Mr. Denny was alive to the importance of light in movie making. He dealt with the same issue in his June 25 email to Ms. Dennis proposing that certain scenes be shot between 8:30 and 11:30 p.m. [ 34 ] By June 26 Mr. Denny had discovered that in error he had shot certain scenes with his camera set on DV which is a non-high definition HD setting (non HD). In cross-examination, he admitted when he was hired as a cameraman, he was to shoot the entire film in high definition.

He readily agreed for one half day he had shot a murder and a man on a cell phone scenes in non HD. Ms. Dennis was aware of this problem by June 26 and that day sent an email to Mr. Denny and Mr. Polanski in part as follows:

We are editing out the scenes that seren’t shot in hd that day re: Brian walking the dog and the rapist strangling her. We don’t need to show him killing her. We are only using the dicks finding her as footage from that day. re: I believe the camera was in hd for that scene. We are editing out Jane’s jogging scene re: not in hd. She will have her claim to fame when we give her a credit for singing Ava Maria in the opening scene. BUT IF the dicks talked about the JOGGER when they were looking at the dead girl in the woods then we could just RESHOOT that one scene in late JULY.

That was a better scene then Brian Gamblin’s. More action to it. BRIAN’S SCENE WAS FLAT. HIS CLAIM TO FAME WILL BE IN THE LINEUP. I don’t want a blurry screen for any shots. (It’s going on the big screen) I also don’t want to re shoot because we are going to have enough scenes already for the final movie and that was a hard day. [ 35 ] It has not been made clear to me in the evidence how many scenes were shot in non HD in error, how long they were, how important they were, whether they were all deleted from the final version of the film or whether some were reshot in HD.

The magnitude of this issue is far from clear. But certainly by June 26, 2009 it seems (as above) not to have been a major concern of Ms. Dennis. [ 36 ] On July 1, 2009 Ms. Christine Denham, an actress emailed Mr. Denny: Thank you again for the great experience on the set. I felt very comfortable with your direction and, whether you know or not, you have a presence of self confidence which provides a good sense of professionalism. Amidst all the chaos you brought it all together. I’m very excited to see the end result.

Again thank you for helping me to bring the character to its full potential on the screen. [ 37 ] On July 5 Ms. Dennis emailed Mr. Denny in part as follows: I think we accomplished a hell of lot yesterday. Thanks for all your hard work! I am thinking we may still get something out of Teo’s scene. We should be able to save it despite his bad acting. He sure needs lessons. [ 38 ] After the filming was complete, Mr. Denny held on to some 22 tapes of raw footage while the process of editing was being discussed. Ms. Dennis apparently advertised for editors and on September 24, 2009 emailed Mr.

Denny is part as follows: How do you propose we sort the editing problem out? We had a huge response from the ad and I have already set up about five meetings with different Editors for this coming Monday. Again I did this because you said you don’t have time to edit the movie. We also don’t want different young people like Dylan etc. editing pieces of the production. He told us long time ago that his computer was really slow and not good enough to edit an entire movie.

Of course that would be great if they needed your input or advice if you wanted to work with them since you were the Director (whenever you have the time in the evening.) [ 39 ] By October 14, 2009 Mr. Denny or someone had prepared a written contract and had sent it to Ms. Dennis who said on this date in an email response that she had read it, worked a few changes and needed a month to speak to a lawyer about it not then having the money to pay for a lawyer. As to his being given a director’s credit she confirmed this: 2.

Tyrone and I both directed OFF camera AND ON BREAKS some of the actors so although I won’t take a directing credit Tyrone has to. So both your names would have to be credited as the Directors in the contract. Other Credits you will also receive are as follows which you requested: Director of Photography, Post Productions Supervisor and Editor I don’t understand what you mean by the script consultant credit. [ 40 ] Apparently Mr. Denny had earlier formally requested an ability to use film clips from FMF to make a showreel of some portions of his camera work on FMF but apparently not until the film was finished.

Ms. Dennis’ response on point on October 14, 2009

was as follows: 3. I am the only person (other than the people I sell it to) to be able to show footage whether short clips or long of the movie Forgive Me Father. Especially since I don’t want any of the movie shown until it is sold. [ 41 ] In the same email she asked Mr. Denny to provide her with: (

a) full details of his time (

b) full details of his out of pocket expenses. [ 42 ] She noted she had not seen these items for her to be able to decide on them or agree to them and said: (“Again ALL agreed prices we previously discussed need to be in writing in the contract.)” [ 43 ] This lengthy email concludes as follows: 5. The filming of the movie is completed re: production so I would like an amount in writing that is owed by me for the services you have already provided and completed. re: Director of Photography and Directing services out of pocket expenses etc.

I am not sure (if you could explain please) what the $50.00 per hour price includes for Director of Photography since we originally, verbally agreed on $100.00 per hour in our first meeting. 6. I would need an approximate price written in the contract where it says you will receive a certain amount of money for EDITING. Since you should have a fair idea of the amount of time required for some of the editing you have done , I would like a MAXIMUM amount (bottom line price) in writing put in the contract.

This bottom line price would also be included regarding (editing supervision or anything I would owe pertaining to the entire editing work by you.) (Bare in mind I am also paying Will for his part of the editing.) You would be listed as the first editor in the credits. I asked for a contract from you several times previous to filming and working on the movie however I just received one today. As a result there are some things written in the contract that we have never discussed previously. Other than that everything else seems ok with me. [ 44 ] Neither party in this action provided the email that Ms.

Dennis was responding to nor a copy of the draft contract apparently prepared by Mr. Denny so I am unable to devine what Ms. Dennis seemed to agree to at this point. [ 45 ] As well by October 14, 2009 it appears that Ms. Dennis had decided to hire one Will Fritzberg, age 24, to edit the film footage. [ 46 ] Thus on October 15, 2009, in an email to Mr. Denny, she asked him to meet with Will and get to him the digitized files of the remaining footage that was left to edit. Will was to have the necessary hard drive within a week. She requested input from Mr.

Denny re final contract changes so it could be finalized by the following Wednesday. She asked him to advise her of the total she owed him for work he had completed and for editing consultation with Will - which amounts she wanted in the final written contract. Mr. Denny responded he would deal with her various points that evening. He did so on October 16 at 10:19 p.m. [ 47 ] On the matter of a show reel and related copyright issues that Mr. Denny seemed to be very alive to in October 2009, he said his view was that the contract in essence should state that only Ms.

Dennis owned the copyright in FMF once he had been paid in full. He then said this in part on point: If this was not a deferred payment situation, but a straight forward cash-for -service transaction due upon completion of said services. It would not be an issue: I work. I finish. I get paid. end of the story. However it is agreed that you will owe me no money if the film does not make one sale , and I accept this. Does this mean that I have no

rights to my filmic work that I did no receive any compensation for? This is not a volunteer situation and even if it was, for a Producer to deny the Director or cameraman any use of the footage made by them for their own promotion, i.e. build their showreel, would seem a bit small-minded wouldn’t you think? And I believe that’s not you. All I am proposing is that full copyright ownership for you will come upon full payment just like any other business transaction. And until that time comes, you are in no way restricted at all in what you do with the footage.

I’m happy to add in writing that I will not use the footage for any other commercial endeavours if this makes you feel more comfortable. [ 48 ] Mr. Denny was here making it clear until he was paid in full he wanted to be able to use some portion of his filming work for a show reel. In addition in responding to Ms.

Denny’s point that she would be the only person other than people she sold it to who could show short or long clips of FMF - he seemed to suggest he wanted to be able to use raw unfinalized footage for a show reel and said this: Are you suggesting that after the film is completed I could tell prospective clients that I shot and directed this film but I would not be able to show them anything as proof? Nor for that matter could I show a potential client (who might be better connected than either you or

I) some of the better scenes to generate positive buzz? If you want me to wear a straightjacket on this that’s ok. I’m sure the pre- release deals are rolling in right now anyway. [ 49 ] I conclude that by the evening of October 16, 2009 there was no agreement between Mr. Denny and Ms. Dennis that as the Director of Photography on FMF that Mr. Denny would have a right - really a licence to use any part of it to create a show reel. [ 50 ] He seemed to dispute Mr. Polanski having a Director’s credit along with him and said this in part on point in response to Ms.

Dennis: I can be open to some form of arrangement, but after having directed the film on Mr. “Polanski’s” behalf, only for him to scream obscenities to me on the phone… well, how charitable would most people be to a person like that? I think what the bottom line is here is… credit where credit is due. This is why people worked for free on this production. And yes, deferred payment invariably means for free. So having the credits in which to promote yourself for future professional benefit is so important to people and that’s why they are willing to work under these conditions.

So I think its understandable that some people might not feel happy with someone else taking credit for their work. [ 51 ] The evidence in this case is very clear and unchallenged that by mid-October 2009 Mr. Denny and Mr. Polanski had had a falling out and were not really on speaking terms. He nonetheless remained the Director and his partner Ms. Dennis was the Producer and I find she had the ultimate authority to make all decisions with respect to the film relevant to this action. This is not really in dispute. [ 52 ] Mr. Denny had requested a credit for “Script Consultant” and when Ms.

Dennis asked for clarification, Mr. Denny spelled out in his email response at length this input on set proposing changes to her script. [ 53 ] This same October 16 email as above clarified from Mr. Denny’s perspective why he felt entitled to a $150.00 per hour fee. He suggested an all in editing fee for him of $2,000.00. He said he felt Will should be listed as the First Editor in the credits assuming I think that Will would actually thereafter perform the editing work. He concluded his email saying everything else was OK - and it is not clear whether he was referring to Ms.

Dennis’ October 14, 2009 email or her draft contract or both. [ 54 ] On Saturday, October 17, 2009, Mr. Denny advised Ms. Dennis that he would do a second draft of the contract. He had earlier that day received an email response from Ms. Dennis to his October 16 points. Therein she agreed that he would have a credit for a “Script Consultant”. Mr. Polanski was to have a Director’s credit. She agreed that Mr. Denny had done most of the directing on camera and said “You took over the on-camera directing from day one and did a fabulous job”.

She then continued as follows: I am the Producer and have the say as far as who gets what credit in the movie. There should be no more talk about the credits. I am really getting sick of this. My health is not good right now and I don’t want to argue anymore about Tyrone’s credit. I am mentally drained from all of this. I have had enough regarding him. You two don’t get along and yes he yelled at you because you hung up on me and I told him off about that. Now you are dealing strictly with me not him and I am making sure of that.

He is out of the picture as far as talking to you. [ 55 ] On show reels she seemed to change her position somewhat as follows: When the movie starts selling I have no problem and feel you have the right to show clips esp. the trailer to perspective clients. Until it is sold I don’t want the whole movie out there otherwise no one will need to buy it and no one will be able to be paid if it doesn’t sell.

[ 56 ] By this date she had seen a previous draft of what later became Appendix A to the October 26, 2009 written contract and commented that she had read his total up to date price of $22,745.00 and felt that it was fair and reasonable. With the above error deleted, this sum later became $22,525.00. [ 57 ] It is unclear what film footage which Mr. Denny had shot that she had seen by this date. [ 58 ] Mr. Denny forwarded a new draft of the contract to Ms. Dennis on October 18 at 7:05 p.m. by email.

He indicated that for a technical reason he could not get the digitized film to the editor Will until Thursday, October 22 - one day after Ms. Dennis had requested. [ 59 ] On October 19, 2009, Ms. Dennis sent Mr. Denny at 11:17 a.m. a further email with the subject line in block letters “URGENT: LEGAL PROCEEEDINGS FORGIVE ME FATHER MOVIE”. It states in part: I have consulted several Professionals regarding the Forgive Me Father contract you sent me and it has been confirmed that a VERBAL AGREEMENT that was made before production is AS BINDING AS A WRITTEN CONTRACT AGREEMENT.

A written contract is not binding when it has been delivered several months after the production. I am giving you until this coming Saturday October 24 th at 11:00 am to deliver the footage to my Editor or I will have to start court procedures regarding this matter. I will also involve the RCMP since this is theft of my movie footage. We had a verbal agreement before you started filming my Forgive Me Father movie that you would get paid when the movie sold.

There was NO VERBAL AGREEMENT that you would own partial copyright to Forgive Me Father or be able to sell any footage or clips of the movie until several weeks had passed after the production was finished. I would not have hired you if you demanded partial copyright and the ability to sell clips of the movie footage which again there was NO VERBAL AGREEMENT pertaining to these clauses. I asked you BEFORE the movie commenced filming and SEVERAL TIMES during the movie production to PROVIDE me with a contract. You WAITED for SEVERAL weeks to get a contract to me AFTER the production was finished.

Again I will tell you that a VERBAL AGREEMENT IS LEGALLY BINDING IN COURT. I do not want to have to proceed with a Lawyer etc. but I will do whatever it takes to see that this movie gets edited and sold. [ 60 ] Thus it would appear that on October 19, 2009, Ms. Dennis was not agreeing that Mr. Denny would have show reels rights. I should also add that the tone of this aggressive email was a very dramatic change from that in previous emails written by Ms. Dennis and it would be difficult for me to conclude that Mr.

Polanski did not have a firm hand in the creation of the above communication. [ 61 ] On October 19, 2009 Mr. Denny responded at 5:56 p.m. noting that the matter was getting “wildly out of control” and that her email was a complete reversal of their conversation (I assume by email) yesterday, October 18, 2009. He said in part as well: I honestly do not believe I am not breaking any verbal contract and yes, you have asked for a contract, so I have given you two drafts for your consideration.

What is written down below here is quite removed from anything I have written in the two drafts of the contract or our subsequent emails. [ 62 ] I do not know what Mr. Denny refers to as “written down below here”, but I suspect it was her references to legal action and the RCMP. The context of this email is that it was yet a further draft of a written contract different from the first several iterations. [ 63 ] On October 21, 2009, Ms. Dennis sent an email to Mr.

Denny as follows: This is a reminder about the deadline regarding your delivering the Forgive Me Father footage to Will by this coming Saturday at 11:00 am. I would like it in the form of all the TAPES (entire raw footage, 4 scenes you have edited and the all the rest of the scenes for the entire movie. I will be getting the hardrive after you have delivered the footage.

You have told me to persue getting a Lawyer. This means you are infuring that you are not delivering the footage to the Editor by this Saturday. Why would I need a Lawyer if you are delivering the footage. At 11:10 am this coming Saturday October 24 th 2009 I am going to the RCMP to press Grand Theft Charges against you if the footage to Forgive Me Father is not delivered by my deadline above. [ 64 ] Two days later she sent him a further written contract which I assume she or someone else under her direction drew up stating that it should “cover all our agreements”.

Seemingly from her perspective, she wanted to put in writing what she and Mr. Denny had earlier agreed upon either orally or in various emails - their chosen means of written communication. This email then states: Upon signature of agreement and delivery of tapes by the deadline in the contract I will be happy to give you your expense cheque as noted in the agreement. Please execute and send to me two copies of the agreement and please initial every page of the agreement including Appendix A & B. I will then execute and initial the copies and return one copy to you by return post.

I look forward to being able to edit the movie, sell it and pay you I full as quickly as possible. If you prefer to meet at Lynda Burrough’s house to sign the contract let me know. [ 65 ] On Friday October 23, 2009 at 9:42 p.m., Mr. Denny responded. He said his expenses (I assume payment) were not contingent upon any review of anything. It is not clear to me what this means and he didn’t clarify this thought in his evidence.

Nonetheless he indicated he would be prepared to sign very importantly her draft of the agreement which came from her proposing to meet her alone at Linda Burrough’s house on Monday, October 26, 2009, indicating that he was filming pretty much the whole day on October 24, 2009. He concluded: As a courtesy, and courtesy alone, I will bring all 22 tapes with me and my camera. They are all properly labelled and you can feel free to spot check any tape you want. This will be your verification. [ 66 ] I should indicate that several days earlier on the evening of October 18, 2009 during a telephone call between Mr.

Denny and Ms. Dennis, he said he heard screaming and obscenities in the background he felt emanating from Mr. Polanski with whom he was then not only not on speaking terms but I find really almost in an adversarial relationship. As Mr. Polanski was not the producer and Ms. Dennis had by then made it clear in writing that all Mr. Denny’s dealings were to be with her, there was no reason to include Mr. Polanski at the October 26, 2009 meeting and in my view good reasons to exclude him therefrom.

Because the contract which the parties agreed to sign on October 26, 2009 came from her, it seems to me to be obvious that had she wished to review it with Mr. Polanski before Mr. Denny signed it, she had ample time to do so - I find close to one week. I find there was no reason shown in evidence for Mr. Polanski to be at the October 26, 2009 meeting to review the contract. [ 67 ] Mr. Denny testified that he brought 22 tapes of raw footage to Ms. Burrough’s home on October 26, 2009. The contract was signed here. Ms. Dennis did not know how to load them on her computer and Mr.

Denny suggested she discuss this issue with her editor. Ms. Dennis then asked for his help in getting the tapes digitized (which according to Mr. Denny means transferring the raw film footage to a computer hard drive). Mr. Denny agreed to help out and hence took the 22 tapes back home to put their contents on his hard drive which could then be given to Ms. Dennis’ editor (Mr. Fritzberg) to download. He said the arrangement was further that when he received his expense reimbursement and his hard drive back, Mr. Denny said they both agreed that the tapes would then be provided to Ms.

Dennis. [ 68 ] The written contract according to Linda Burroughs was partly drawn up by her but not entirely. She said Ms. Dennis had given her a draft prepared by Mr. Denny that she made changes to - the most significant one being to clause 6 which deals with deferred payment of Mr. Denny’s fees for the work he did and states he is to be paid on a percentage basis from each sale of FMF until his account of $22,975 was paid in full. She admitted in her evidence that this clause ought to have said the deferred payment was to be on a pro rata basis and not a percentage.

She also admitted that before October 26, she understood that Ms. Dennis and Mr. Denny had verbally agreed that Mr. Denny’s out of pocket expenses would be paid first and that the written agreement should have so stated. She testified that she understood that Mr. Denny would not release the 22 tapes unless clause 4 was included in the contract - which in essence states that Mr. Denny agreed with Ms. Dennis to take on additional roles of director at the time of filming and Production Consultant to assist and advise in the pre-production aspects of the filming. She agreed Mr.

Polanski was not present when both parties signed the contract and she witnessed their signatures on Monday, October 26, 2009, she thought at Mr. Denny’s home in Port Moody. On cross-examination, she said she couldn’t be sure if it was signed at his place or hers. She recalled everyone was then very civil but that it was generally a very stressful time and that Ms. Dennis appeared under stress at the time. Four days later, she saw Ms. Dennis pay Mr. Denny the $879.59 expense reimbursement and his provision of the 22 tapes to her. This occurred at Mr. Denny’s home in Port Moody.

She was aware that by October 30, the raw footage had been downloaded onto a computer owned or being used by the editor

one Will. Mr. Denny said at some point I understood on October 30, 2009 that he had kept a copy of the raw footage and once it was transferred onto Will’s computer, he would destroy same. This seems not to have occurred. Mr. Denny agreed that he still had a copy of the raw footage but not the entire film in his possession and said he had told Ms. Dennis that he would hold onto it in case the footage was lost or corrupted. He did not state that Ms. Dennis agreed to his having this copy in his possession. I find that she did not.

At all material times she was very consistent in stating that she was the sole owner of the copyright and wanted to control all aspects of the release of FMP. Ms. Burrough recalled that she and Ms. Dennis had reviewed some of the tapes at Mr. Denny’s home. She was not clear exactly when but said the review was very short. [ 69 ] Mr. Denny testified that he allowed Ms. Dennis to review as much footage as she wanted at Linda Burrough’s house before the written contract was signed. He invited her to spot check the tapes.

It was not made clear to me whether they were viewed on his video camera screen or on his laptop screen having by then been digitized on the hard drive thereon. [ 70 ] He testified that it was then impossible to review 22 tapes of film and said her response to spot checking was that “she was sure everything would be alright or fine”. [ 71 ] Mr. Denny said he did not make her sign the written agreement as a precondition to handing over the tapes, but did testify that he wanted her to do so and that when it was done, he would provide the tapes. [ 72 ] As early as October 1, 2009, Mr.

Denny knew having received an email from Ms. Dennis that Will Fritzberg was to edit FMF on an unpaid basis because he just wanted to get his name “out there”. This is yet a further example of a person who worked on FMF doing so to get a credit for his effort. [ 73 ] Mr. Denny testified that he digitized everything he shot with Ms. Dennis’ concurrence for a $500.00 fee on his computer hard drive between October 26 and 28, a task apparently taking 22 hours. He also spoke to Will by telephone as part of the process learning that Will did not have a digital camera and hence could not digitize the film.

Will also had no money to buy a hard drive. Thus the two agreed that Mr. Denny would digitize the film, give Will his hard drive with the footage thereon, and Will would then copy it to a hard drive on his computer that Ms. Dennis acquired for him by October 28, 2009. Mr. Denny understood Will had copied the footage on October 29 and then returned Mr.

Denny’s hard drive to Linda Burrough who returned it to him on October 30, 2009 together with the $879.59 expense money which might have been a cash amount. [ 74 ] None of his evidence as to the digitization of the film and his assistance in editing was challenged by Ms. Dennis. [ 75 ] I found Mr. Denny to be an honest and reliable witness and a man with generally a remarkably good memory for events, some of which occurred a long time ago in the grand scheme of things. He openly admitted where he had made errors in the filming process, e.g. not setting his camera on HD on part of one day of shooting.

His various claims were for the most part supported by documents - the emails I have on purpose set out rather fully above. He did not exaggerate things. He demonstrated no real animus to Ms. Dennis. This is finding as to his credibility stands in stark contrast to findings on point below. [ 76 ] I turn now to Ms. Dennis’ evidence as to events leading up to the exchange of the 22 tapes on October 30, 2009. Very importantly, the position of the defendant Ms. Dennis is that she had to sign the October 26, 2009 contract under pressure or duress to get the film footage from the claimant.

In her evidence she said she signed it under extreme duress and coercion and hence it was null and void. It is clear on all the evidence in this case that insofar as the contract places obligations on her, she has performed few of them beyond paying Mr. Denny his out of pocket expenses, something she agreed to do before the October 26, 2009 contract was even signed. [ 77 ] Ms. Dennis did not impress me to be a credible witness. I found that she had a very poor memory of events. She presented in the witness box often as a very volatile emotional witness. It was very apparent to me early on that she shared Mr.

Polanski’s often palpable dislike for Mr. Denny. Her overall position seemed to be that when she hired him as a cameraman, he seemed to want to rise above this position really without her blessing or consent. In cross-examination, she testified for example that throughout all the filming, Mr. Denny tried to change lots and lots of her script (which she said had taken her a year to write) and often acted as if it was his movie and not hers. When asked - did she not welcome his suggested changes to her script, she said she had no idea. When shown her above June 5, 2009 email to him referring to Mr.

Denny’s “fabulous, brilliant suggestion” re her script - she said she didn’t understand this email - it happened a long time ago - so “No” she in essence did not welcome his script suggestions. Thus her trial evidence on this simple point is diametrically opposed to and inconsistent with what she set out in writing at the time events were actually unfolding in 2009.

Her explanations that she was saying things in essence to make him happy or that they were said before she saw his film, in my view, are nonsense. [ 78 ] Further in cross-examination, she was shown Exhibit 3, page 46 being a list of his creative suggestions for her film in his email to her of October 16, 2009 and agreed that he had sent this to her but could not immediately say she had agreed to them. She testified she didn’t recall doing so - it was so long ago but then said she recalled filming some of his changes.

On several occasions in her testimony, she said she could not recall things due to the passage of time. [ 79 ] When shown her June 11, 2009 email to Mr. Denny stating that the role of Director goes to you and Tyrone (Polanski) on the movie credits, she agreed she had sent it, but said she meant the “Director of Photography”. I found this to be a particularly lame explanation of what she had set out in her email and not a truthful one. [ 80 ] She said when asked when filming started, she thought it was June 23, but said she would need to look at the call sheets to be sure.

This is 3 weeks after filming in fact started and an example of her poor memory. [ 81 ] I had the impression when I listened to Ms. Dennis that before her trial testimony she had not found the time to review the documents in this case to potentially refresh her own memory. [ 82 ] She didn’t recall Mr. Denny agreeing to pay for a hard drive for her editor Will Fritzberg to use in the editing process in late October. This offer was made. She agreed Will had said he needed a new hard drive to digitize the footage but felt this was weeks after October 26.

I find that it was an event that occurred before October 30, 2009. She said the claimant did not digitize the raw footage

onto a hard drive and then agreed he had. She could not recall Mr. Denny providing her with his fees and a list of his camera and related equipment before filming started when clearly he did so on April 28, 2009 some almost 5 weeks before filming commenced. When shown the email (Exhibit 3, page 6), she agreed he had done so. [ 83 ] I find that in the above almost 5 weeks Ms. Dennis had ample time to reflect upon whether or not Mr. Denny’s equipment was acceptable for FMF and to ask to see samples of his work had she wished to before engaging him.

There is no evidence that she did either. [ 84 ] She was cross-examined on the issue of “clips” of FMF re Mr. Denny’s creation of and use of a show reel containing same. She agreed that in her email of October 17, 2009 to Mr. Denny she had said that once the movie started selling she felt he had the right to show clips especially the trailer to prospective clients. Reference was made in the evidence to a trailer for FMF, however, there is no evidence to who created it and when and what it contains, for example Mr. Denny’s unedited work or his work later edited by Mr. Polanski. [ 85 ] When asked by Mr.

Denny - in essence had she not agreed that he had this right - she agreed that she had written the above email but later on decided she didn’t want him to be able to do it. She did not want pieces of her film out there. She wanted it kept intact. She did not agree that it was common in the industry (I assume film-making) to give a cameraman clips of his work to put on a show reel - it depended in each case on the producer. [ 86 ] Ms. Dennis testified that apart from the written contract, that she and Mr.

Denny orally agreed that she would be paid her out of pocket expenses once FMF commenced selling - before anyone else received any money. Ms. Burrough had said the parties had also made an oral agreement that should have been included in the written contract that Mr. Denny’s out of pocket expenses would be paid first. This agreement was not contingent on the film selling. Ms. Dennis has never challenged this agreement. [ 87 ] Ms. Dennis relies on two main points in support of her plea in her counterclaim that the October 26, 2009 contract was entered into really under economic duress as follows:

(1) Mr. Denny would not release the 22 tapes of raw footage to her without having an executed contract.

(2) Mr. Polanski, her partner, was not allowed to be present for the signing on October 26 and didn’t see the contract before she signed it. She does not assert in this action that it is somehow invalid because only she signed it. [ 88 ] She also states that she had not really seen the film footage until after she signed the contract and seemed to suggest that had she or Mr. Polanski done so, she would never have signed it.

This last point, in my view, does not clearly support a defence based in economic duress. [ 89 ] Contracts can be set aside as voidable as a matter of common law if there is such a degree of economic pressure or coercion put on one party often called the “weaker party” by the other contracting party the “stronger party” that her execution of the contract can be seen essentially as a coerced act, not one of her free will in which case her consent is said to be vitiated and there is no true consent. Thus economic coercion can amount to duress.

Certain caselaw suggests that legitimate business pressure to sign a contract cannot be seen to be economic duress. [ 90 ] I am not of the view that any act or acts of the claimant when considered as a whole amounted to economic duress in this case. [ 91 ] The contract the parties signed was a draft from Ms. Dennis created after she obtained some help from Ms. Burrough as to its content. Ms. Dennis was at the time alive to her ability to seek legal advice on the content of same and said earlier in an email to Mr. Denny that she intended to do so. It is unclear whether she later did so or not.

I find she had ample time to do so or include such terms as she wanted in the contract or discuss the same with Mr. Polanski at length had she wished before she sent it to Mr. Denny or agreed to meet him to execute it on October 26. If Mr. Polanski did not see the contract or approve of its form before she signed it, that is not a matter to Mr. Denny’s account. [ 92 ] I have commented above as to why it was not necessary or required or I think even a good idea for Mr. Polanski to be present on October 26 at the signing. Again Ms. Dennis was the producer and had earlier told Mr.

Denny all his dealings without exception were to be only with her. [ 93 ] I accept that Mr. Denny wanted a signed contract before he released the entire fruits of his labour on the film to Ms. Dennis - the 22 tapes. I find that really everything in the contract had by October 26 generally been agreed to by the parties including his additional $50.00 per hour fee for his considerable on set directing work. I am of the view that it was not unreasonable or

an act of economic duress for Mr. Denny to want the contract signed before he provided the tapes to Ms. Dennis. It was she not he who at the outset suggested there should be a written contract. I am not of the view that Ms. Dennis was in anyway in October 2009 a weaker party as compared to Mr. Denny in their business dealings. Nor do I find Ms. Dennis really protested in any way in being forced to sign the contract on October 26, 2009 which again generally set out what had earlier been agreed to orally or in the raft of emails exchanged between them. Ms.

Dennis was not really under some form of extreme time pressure in late October 2009. Very little had been done on FMF from July 1 to October 2009. [ 94 ] As to Ms. Dennis not being given an opportunity to see the 22 hours of film footage before signing the contract, I find this is nonsense. The filming occurred for the most

part in June 2009. She could have insisted on seeing it daily had she wished or in July, August or September. She was the producer. If Mr. Denny was too busy to do so on filming days, Appendix A to the contract makes it clear that 17 days in June were non-filming days. Ms. Dennis as producer might have reasonably insisted on viewing the footage then in June including in the 5 days between June 9 and 15, 2009. She could have insisted on seeing it from July 5 to October 26, 2009 but apparently did not for no reason explained in the evidence. [ 95 ] What are the terms of the contract made between the parties?

I find this contract was partly written and partly oral. The terms are as per the October 26, 2009 contract and attachments and I find there are three oral terms agreed to as well.

(1) Mr. Denny would be paid an additional $50.00 an hour for on set or on location directing work.

(2) Mr. Denny would be paid his out of pocket expenses first following the execution of the contract.

(3) Ms. Dennis would be paid all her out of pocket expenses first from finished film sales before anyone including Mr. Denny was paid any deferred compensation owing. [ 96 ] Should there be an implied term found by the court in the agreement the parties made relating to an obligation on the part of Ms. Dennis or anyone licensed by her or holding an assignment of any copyright in FMF to act reasonably, honestly and in good faith to use their best efforts to market and distribute FMF? It is entirely clear to me that both parties to this contract seem to have assumed this would be so.

This assumption lies behind clauses 6 and 7 of the October 26, 2009 agreement. Without such a commitment the whole deferred payment scheme everyone accepted is unfair and meaningless. In my view there should be such a term implied to give the contract in issue in this case to give business efficacy to their agreement. It is both fair and reasonable to do so on the facts of this case (see Waddams: The Law of Contract (4 th ed.) para 497 et seq). Thus I find that the above implied term is part of the parties bargain and agreement. [ 97 ] I turn now to the claimant’s claims. Credits: [ 98 ] Ms.

Dennis agreed that Mr. Denny was to have the credits set out in clause 9 of the October 26, 2009 agreement. I find that Mr. Denny performed all the roles referred to therein and at the outset Ms. Dennis was very satisfied with his efforts as her earlier above emails to him disclose. I place considerable weight on these written communications because the events in issue in this lawsuit happened so long ago, these emails mostly were created contemporaneously with the events in issue and due to my finding that Ms. Dennis has a poor memory on certain events. I do not agree with Ms. Dennis’ position that Mr.

Denny did nothing to earn these credits. He did. Nor do I find subsequent events after October 26, 2009 somehow disentitle him to what she agreed upon in clause 9 of the contract or before October 26, 2009. I repeat - I do not accept her evidence when her positive email comments concerning Mr. Denny in June 2009 were put to her in cross-examination that “anything nice I said about you was before I saw the footage”. She knew as early as June 26, 2009 that there were some problems with the footage (see Exhibit 3, page 24, email to Mr. Denny) but continued on using Mr.

Denny in several capacities thereafter nonetheless. [ 99 ] I find that Ms. Dennis has not given Mr. Denny the agreed upon credits anywhere in FMF and she is thus in breach of her contract with him. The fact that the film name has been changed matters not. These credits were and are of significant importance to Mr. Denny particularly where he and others worked for nothing thus far and at best the hope that the film might be fairly marketed would sell and only then might they be paid. [ 100 ] Mr. Denny says this in paragraph 60 of his written argument: To be credited for my role on the film as agreed.

This would include any published mentions of the film where credits and/or roles are listed. And because, lamentably, I know how the defense operates, it must be clear that my credits last as long as others and in the same font size in the video version. These credits are important because I will finally be able to show prospective clients proof that I have indeed shot and directed a feature length production. [ 101 ] Thus Mr. Denny does not now claim damages for this contractual breach.

It was made clear in his evidence that one place where he sought agreed upon credits was in the internet database referred to below called IMDB. [ 102 ] Can I make a declaration - really an order for specific performance that Ms. Dennis do what she agreed to do and give Mr. Denny the credits in issue? [ 103 ] I my view I can. This court has a limited or narrow equitable jurisdiction to grant an order for specific performance of an agreement if the monetary value of the subject matter is $25,000.00 or less. (See Cimaco International Sales Inc. v.

British Airways PLC , 2002 BCPC 226 , a decision of Dhillon PCJ and s.3(1) of the Small Claims Act RSBC 1996 c. 430. This

section states as follows: 3.

(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs. [ 104 ] The subject matter here is really a creative work in which copyright subsists and is owned by Mr. Dennis. Copyright issues aside, a film is not real property but is a form of personal property. Clause 9 of the October 26, 2009 agreement thus relates to personal property.

[ 105 ] Is the value of same less than or equal $25,000.00? As argued in Cimaco (paragraph 27), I find there is no evidence placed before the court of the fair market value of the film as a chattel or the copyright rights associated with it which in the case of a film are arguably potentially the most commercially valuable rights. Unlike in Cimaco , I cannot find that this value exceeds the jurisdictional dollar limit of this court, namely $25,000.00. There is simply no evidence that this low budget amateur film will ever make any money and the defendant and Mr.

Polanski have consciously to date managed its release and promotion so that there is no such evidence. I cannot assume it will be worth more than $25,000.00 as a marketable film once they seek to market it and license or assign Ms. Dennis’ copyright in the process. Thus based on the evidence at trial, I find that its value is less than $25,000.00. [ 106 ] Thus I make the order the claimant seeks as follows: [ 107 ] Dianne Dennis carrying on business as Brown Eyed Angel Productions and her successors, assigns and/or licensees as the case may be shall cause Martin Denny to be named as a

(1) Director,

(2) Director of Photography,

(3) Production Consultant and

(4) Script Consultant on (

a) the film FMF and/or Evil Has Come to Prey and any and all copies of same released in any fashion whatsoever for either private or public viewing and (

b) in any written publications including electronic writing on the internet including on IMDB where other like credits or roles are exhibited and shall include these credits in the same font size as all other like credits displayed in the film credits. These credits shall be granted whether or not the name of the film shall be changed in future and whether or not Ms. Dennis shall license or assign some or all of her copyright in it to another including her own successor. [ 108 ] Mr. Denny seeks an order that he is entitled to use “the footage” for a show reel. I decline to make such an order.

This right was discussed by him and Ms. Dennis but for some unexplained reason, never was set out in the October 26, 2009 contract. Ms. Dennis was very clear in her evidence at trial that she did not want her film disseminated in bits and pieces. As the sole owner of the copyright she is entitled to take this position. It is her work. I cannot conclude there was a binding oral or proper written contract on point regardless of the discussion on point in their various emails. [ 109 ] Copyright is engaged in this issue.

Section 3 of the federal Copyright Act RSC 1985 c. C-42 provides in section 3(1) in part as follows: Copyright in works 3.

(1) For purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right (

a) to produce, reproduce, perform or publish any translation of the work, (

b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work, (

c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, (

d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, (

e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work. [ 110 ] In order to create and use film footage in FMF in a show reel, Mr. Denny would in my view require a limited written license or assignment of Ms. Dennis’ copyright which she has not properly been prepared to give him. [ 111 ] Section 13(1), (3) and (4) of this Act states as follows: 13.

(1) Subject to this Act, the author of a work shall be the first owner of the copyright therein. Repealed

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an

article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent . (emphasis added) [ 112 ] There is no evidence that the form of license contemplated in s. 13(4) (or assignment) was ever given by Ms.

Dennis to Mr. Denny. For this reason alone, Mr. Denny’s claim fails. [ 113 ] It is far from clear what footage Mr. Denny might wish to use for a show reel. What if he settled upon 5 minutes of film work

that Ms. Dennis found abhorrent but that he liked. If Mr. Denny could go about in the industry flogging his artistic talent with such images, it could potentially be detrimental to the ultimate successful release and marketing of the film. In my view there is every reason if a show reel was to be created for the copyright owner to first consent to all its content and as well how it might be used. None of that occurred here. [ 114 ] Mr. Denny seems to seek a percentage of the film’s sales but does not say how much or do any calculation of the amount. He must prove all his claims on the balance of probabilities.

He has failed to prove he is now entitled to be paid anything. The deferred payment arrangement agreed to in this case and the contract in question have some similarities to the contract recently considered in Hole v. Hole 2016 A.J. No. 126 (Alta CA) in the sense that Mr. Denny is only to receive his agreed upon money (which I find with the above correction is $22,525.00) subject to my findings on Ms. Dennis’ counterclaim below in the event the venture, i.e. the film is successful and brings in revenues in future, not a certainty in my view. I have above referred to an implied term and going forward Ms.

Dennis will be obliged, contrary to what she has done historically since October 26, 2009, to attempt to distributed FMF and provide Mr. Denny with gross and net sales particulars including with respect to all licenses or assignments of copyright in FMF and/or Evil Has Come to Prey or whatever name may be given to FMF in future. [ 115 ] I find that at no time did Ms. Dennis agree to Mr. Denny keeping any copy in any way of her film including on the hard drive of his computer.

This electronic copy is again personal property and this court has jurisdiction to grant relief from opposing claims to such property. (See s. 3(1)(d).) He wants to keep his copy. She wants it back. I make the following order: [ 116 ] Martin Denny will not later than June 17, 2016 delete and destroy any and all copies of any film he or others made or took of any portion or part of the film FMF and will not later than June 17, 2016 provide written proof to Dianne Dennis by registered mail that he has done so.

Counterclaim: [ 117 ] I turn now to the counterclaim in this case in the amount of $24,749.00 called “extra expenses” (over and above the defendant’s production costs) said to have been caused by Mr. Denny. They are set out on Exhibit 2, tab 7, page 21, as follows: YEAR 2009 1. Digitizing Fee and Tape Deck Rental 700.00 2. Wrong Format 2 scenes (deduct his wages) 1,350.00 June 15 3. Blank tape 10.00 4. Humming in Marriage Counsel Scene 1,575.00 June 16 5. One Day of Stock Shots (Breach of verbal) 1,500.00 6. Dianne Driving Stock Shot days (4) 250.00 7. Aperture Correction 70 hours x $65.00 4,500 8.

Dianne Filming Extra Scenes (3) days (to make up for lost footage due to not useable) 4,500 9. Pay for Actors and Crew (50 a day x 2 days) 1,600.00 June 15 16 10. Subtract his digitizing fees (We had to redigitize) 500.00 11. Food for both Days 300.00 June 15 16 12. Defective Camera (Electronic Hum) 60 x $65.00 3,900.00 13. Rosary Beads (he tried to change a scene not authorized by us and broke the beads) 64.00 14.

Wrong format tapes 20.00 TOTAL EXTRA PRODUCTION EXPENSES = 20,769.00 Loss of time due to editing re Footage Problems 3,980.00 TOTAL 24,749.00 [ 118 ] For the most part, this claim relates not to out of pocket expenses incurred by the defendant but to claims for compensation for Mr. Polanski’s work he says he did to edit the footage Mr. Denny shot or to do retakes or replacement shots as he felt Denny’s film could not be salvaged or used. [ 119 ] Mr. Polanski and Ms. Dennis both testified as to numerous complaints as to i nter alia the quality of the film footage shot by Mr. Denny. A

summary of these various complaints about Mr. Denny’s work is as follows:

(1) There was excessive light or “fireballs” in certain scenes.

(2) Some footage had black on the sides or top and bottom at times blocking out content in the shots.

(3) Mr. Denny at times failed to shoot the action in the scene and filmed the wrong area or person.

(4) Some shots had no sound.

(5) Some filming was done with the wrong format camera setting, i.e. non-HD.

(6) Mr. Denny failed to follow Mr. Polanski’s directions as to how to conduct filming on the set.

(7) Mr. Denny did poor camera work.

(8) Mr. Denny failed to do “stock shots” as agreed.

(9) Mr. Denny did not digitize all the raw footage on the 21 or 22 tapes contrary to his agreement.

(10) His camera hummed or made a noise which had to be removed. [ 120 ] These allegations are for the most part sought to be supported by and allegedly proven by the evidence of Mr. Polanski. Ms. Dennis did testify about some of these issues but really added nothing further to the evidence offered by Mr. Polanski. To some limited extent Mr.

Denny has admitted to having made several errors during the filming of FMF, for example, not recording sound and on one occasion having his camera set on a non-HD setting. [ 121 ] There is no dispute that FMF was to be filmed entirely in HD and so as to be compatible for a big screen as against use only in DVDs. When finished, it was to be a feature film about 90 minutes long. In fact it is now said to be virtually complete save finalizing credits and is said to be 93 minutes long. [ 122 ] In order to be successful on her counterclaim, Ms.

Dennis must prove all her allegations on the balance of probabilities - the same standard of proof as expected of Mr. Denny, the claimant. [ 123 ] I have considered the evidence in this case with respect to the counterclaim. I have placed very little weight in the film clips provided by each party and far more weight in the evidence they gave in court as to what these showed, e.g., Exhibit A being the DVD Mr. Polanski prepared for purposes of showing just how substandard Mr. Denny’s work was. The witnesses can be cross-examined on the testimony they give in court. The film cannot be.

As a judge I am in no position to assess the quality of the cinematography in issue in this case just as I would be in no position if hearing a medical malpractice case involving alleged botched surgery to judge whether the surgeon erred or not. These types of issues really require opinion evidence and comment from someone who is independent and unbiased with expertise in the field in issue. No such person was called by the defendant. I will shortly come to the evidence of Mr. Marino and Mr. Caldicott called as witnesses by Mr. Denny.

In the result while the various allegations of the defendant really sound in negligence - that Mr. Denny owed them a duty to use care in his work, did not do so and did not meet the requisite standard of care of a professional cameraman and they have suffered losses as a result, I have no independent objective evidence as to what is proper and acceptable work for such a person and what is substandard. [ 124 ] I found the evidence of Mr. Polanski and Ms. Dennis as to the deficiencies caused by Mr. Denny in the filming at times rather difficult to follow.

Neither can be described as unbiased or independent or was shown to have any real experience or expertise with respect to film making, cinematography, editing or anything else beyond acting. Neither filed a C.V. nor did Mr. Denny. Ms. Dennis is the defendant. She is the dog in the fight with Mr. Denny so to speak and very much has an interest in the outcome. Both she and Mr. Polanski appear very much to dislike the claimant. There is a very obvious strong negative animism in their relationship with him.

I am very much alive to this feature of this case. [ 125 ] I find both are guilty of some measure of exaggeration, for example, suggesting in their evidence variously 25% or as much as 70% of Mr. Denny’s raw footage was unusable without providing any real evidence to support their assertions. [ 126 ] What ought to have been done in this case was for someone for the defendant to prepare a

schedule of all the scenes in the film perhaps as now finished - all 93 minutes - and number them in the order in which they appear and set out how long each was from start to finish and then give each scene a number and a title, e.g., “rape scene”. It would have been helpful to then set out which scenes in the final version were Mr. Denny’s edited work and which were replacement scenes. If they were Mr. Denny’s work - what was the editing time and effort required to finalize them?

If they were new scenes or shots, an explanation as to why new material was needed and what time and expense was involved in creating it? Each witness could then refer to each scene by name or number and I would have had an idea of the magnitude of the alleged problems. This was not done. Vague estimates to the effect that, for example, 60 or 70% of Mr. Denny’s film was unusable, are not really helpful and not in my view proper proof of the counterclaim in this case. [ 127 ] The evidence of Mr. Marino and Mr. Caldicott that parts of Mr.

Denny’s filming in Exhibit A appeared to have been altered or manipulated to in essence exaggerate the matt box black edge problem was not seriously or successfully challenged in cross-examination by Mr. Polanski. This evidence is of concern. [ 128 ] As to Exhibit 2, tab 7, page 21, the above

schedule Ms. Burrough assisted with, there are in my view problems associated with it. There have really been no source or backup documents associated with it at all. My impression is that many of the figures are but estimates. This document is undated and I have no evidence as to when it was prepared. There is no evidence Mr. Polanski kept time sheets of the editing and related work he did or even a journal - something easily done particularly when it must have been clear to both Ms. Dennis and Mr. Polanski that there was a dispute as to what they though Mr.

Denny was entitled to with respect to his work which they were critical of. [ 129 ] I intend now to deal with the various claimed amounts in the above

schedule “Extra Expense Caused by Martin Denny” in the order in which they appear thereon. 1. Digitizing fee: $700.00 [ 130 ] Mr. Denny did not really take issue with Mr. Polanski’s evidence that one of the 22 tapes he gave Ms. Dennis on October 30, 2009 was blank and that not all footage had been digitized - 25% had been left out. Mr. Denny did not agree that he had used the wrong hard drive in this process. I do not find that he did. The tape deck had to be rented so that certain tapes could be inserted and a USB used I assume to load them onto his MacPro computer. I allow $125.00 on this deferred claim.

Where I use this term, I mean that it is not an out of pocket expense on Ms. Dennis’ part. Mr. Denny charged her $500.00 for this work and will only recover payment for any of his work net my counterclaim awards if and when the film sells. An out of pocket expense is one where Mr. Dennis has already paid him or someone the amount in issue and seeks reimbursement now.

2. Deduct Mr. Denny’s wages (June 15, 2009): $1,350.00 [ 131 ] Mr. Polanski said 2 scenes shot this day in non-HD format could not be used in the final work referring to them as the jogger discovering the dead girl and the forest murder scene with Mr. Lazaruk. Mr. Denny admitted to making this error and I am not persuaded where it is accepted that the movie was all to be in HD suitable for the big screen that the resultant footage was of any utility. I award the amount claimed $1,350.00. In so doing I am really saying that notwithstanding Ms. Dennis initially agreeing on the figure of now $22,525.00 owing to Mr.

Denny, that the defendant has established this amount should be deducted from his claim. 3. Blank tape: $10.00 [ 132 ] I accept the unchallenged evidence of Mr. Polanski that one tape was blank. Mr. Denny charged Ms. Dennis for 22 tapes ($220.00) and was reimbursed this amount on October 30, 2009 but on the understanding I think that the tapes contained raw footage. One did not. I award $10.00 on this out of pocket expense. [ 133 ] 4. This claim is said to relate to Mr. Polanski’s editing of a single scene shot on June 16, 2009 he referred to as the marriage counselling scene to remove a humming noise.

This scene was shot between the hours of 9:00 am and 7:30 pm as was a 15-second scene of a woman having a baby. Mr. Denny charged for 10.5 hours. Thus the marriage counselling scene took I assume the majority of the day. Mr. Polanski said this work done over 9 days took 24.2 hours for which he charged BEAP some $1,575.00 at a rate of $65.00 per hour. I was not told how long this scene was. Ms. Dennis said this extra production cost was not an out of pocket expense but an amount owed to Mr. Polanski with others when FMF sells. She claims it against Mr. Denny.

Again nothing in the way of a time sheet was produced to support this claim. Nor am I given any independent expert or other evidence to support either the need for this work and if needed that the time spent was reasonable. Nor do I have evidence that had Mr. Denny conducted his filming properly, this sound would not have been present. I am unable to determine if this issue is other than a usual film editing issue or how bad it was. Mr. Denny did not charge the defendant for editing and it would be a post-production cost that the defendant would have to bear in any event.

This claim is hence not proven on the balance of probabilities. 5. Stock shots: $1,500.00 [ 134 ] The defendant claims $1,500.00 against the claimant because she alleges Mr. Denny orally agreed to shoot certain filler scenes or shots and did not do so and thus breached an oral contractual term made with her. She agreed there was no such term in the October 26, 2009 wri

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