Whitehall Entertainment Incorporated v. Kafka Pictures Inc., 2022 BCPC 184

Citation: Whitehall Entertainment Incorporated v. Kafka Pictures Inc. 2022 BCPC 0184 Date: 20220602 File No: 1964880 Registry: Robson Square IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: WHITEHALL ENTERTAINMENT INCORPORATED AND BRENDA WHITEHALL CLAIMANTS AND: KAFKA PICTURES INC. DEFENDANT – and – File No: 1861372 Registry: Robson Square BETWEEN: WHITEHALL ENTERTAINMENT INCORPORATED AND BRENDA WHITEHALL CLAIMANTS AND: ALICIA KAFFKA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Claimants: Tarek Elneweihi Counsel for the Defendants: W. Godfrey A.

Dallazanna, Articling Student Place of Hearing: Vancouver, B.C. Dates of Hearing: August 3, 4, 5, September 1, 2, 3, 2021 Date of Judgment: June 2, 2022

INTRODUCTION What is this case about? [ 1 ] This case concerns a dispute about an independent short film that is approximately 18 minutes long, called, Hey, That’s My Bike! Ms. Brenda Whitehall and her sister wrote a screenplay/script, which has the same title and was used as the basis for the Film. The Film, which is the primary source of the dispute, came into being through the contributions of Ms. Whitehall and Ms. Alicia Kaffka. The nature, quality, and importance of those contributions, and the legal ramifications thereof are at the crux of the dispute between the parties.

Also in dispute is the nature and terms of any agreement between the parties. For ease of reference, I refer to the personal parties by their names, to the corporate parties by an abbreviated version of their corporate names and to the screenplay/script as “the Script”, and to the film called Hey, That’s My Bike! as “the Film”. [ 2 ] In addition to Ms. Whitehall and Ms. Kaffka, others such as actors, members of the filming crew, and so on, who had skills normally used in making a film, “volunteered” their time to make the Film. They were not paid as such, instead they received an “honorarium”.

They also were to receive “credits” for their participation in making the Film. [ 3 ] Initially, Ms. Whitehall and Ms. Kaffka enjoyed a cordial relationship. However, a short time before the Film was about to be shot, the relationship between them deteriorated. There was a showdown of sorts on or about May 25, 2017, between Ms. Whitehall and Ms. Kaffka. They appeared to reach a rapprochement and the shooting of the Film went ahead as planned on the weekend of May 27 and 28, 2017. However, shortly after that weekend both their personal and professional relationship deteriorated completely and Ms.

Whitehall, acting for Whitehall Entertainment, purported to terminate Ms. Kaffka from the Film project. How did dispute end up in court? [ 4 ] Once it was clear that their personal and professional relationship had unravelled, Ms. Whitehall and Ms. Kaffka got their lawyers involved. There were attempts to resolve the dispute between them but those attempts were not fruitful. When the dispute could not be settled between the parties, the corporate claimant, Whitehall Entertainment, which is owned by Ms.

Whitehall, filed a dispute notice on September 15, 2017, with the Civil Resolution Tribunal, which had a monetary jurisdiction of $5,000. The respondent named in that dispute was Ms. Kaffka. The parties filed materials about the proceedings before the Civil Resolution Tribunal at the trial of this matter. In particular, they filed a copy of the Civil Resolution Tribunal decision dated May 22, 2018.

The parties raised no objections to this Court having some information about the proceedings at the Civil Resolution Tribunal. [ 5 ] The Civil Resolution Tribunal ruled in favour of the applicant, Whitehall Entertainment, and made a number of orders. Ms. Kaffka, the respondent, filed a Notice of Objection on June 19, 2018, as was then permitted under the Civil Resolution Tribunal Act .

A few days later, on June 20, 2018, Whitehall Entertainment filed a Notice of Civil Resolution Tribunal Claim with the Small Claims Court registry (Small Claims Court file number 1861372). [ 6 ] On July 8, 2019, a judge of this Court allowed Whitehall Entertainment to add Ms. Whitehall as a claimant and to further amend the original Notice of Civil Resolution Tribunal Claim filed June 20, 2018, on file number 1861372. The claimants’ claim was for $35,000.

The amended claim expanded the issues in dispute between the parties to include the following: copyright infringement, moral rights infringement, breach of contract, negligent misrepresentation, conversion, breach of duty of good faith, breach of fiduciary obligation, unlawful interference with economic relations, and trademark infringement/passing off. [ 7 ] On July 29, 2019, the claimants filed a new and separate notice of claim with the Small Claims Court under file number 1964880 against the defendant, Kafka Pictures Inc. claiming $32,500.

In that new claim, the claimants were Whitehall Entertainment, the corporate claimant, and Ms. Whitehall, the personal claimant. They claimed damages for copyright infringement, moral rights infringement, and trademark infringement/passing off. [ 8 ] In a reply filed July 26, 2019, on file 1861372 the defendant, Ms. Kaffka responded to the claim but also filed a counterclaim for $32,832. Ms. Kaffka maintained that she and Ms. Whitehall jointly authored the Film.

As well, she claimed that by offering and agreeing to co-produce the Film with the defendant, the claimant granted the defendant a licence to the copyright in the Script to produce the Film. [ 9 ] The defendant sought a declaration that she and the claimant are joint authors of the Film and joint owners of copyright in the Film, a declaration that the claimant gave the defendant a licence for the Script, and damages for breach of the defendant’s moral rights in the Film, film festival submission fees, lost promotion, publicity, and advertisement, and lost opportunity to win film festival monetary prizes. [ 10 ] Kafka Pictures Inc., on file number 1964880, filed a reply in which it denied infringing any copyright held by the claimants.

It further denied infringing any moral rights of Ms. Whitehall in the Script or the Film. It also denied passing off cuts of the Film as being associated with Whitehall Entertainment. More importantly, Kafka Pictures Inc. noted that it did not exist at the time of the alleged infringements/breaches. [ 11 ] The matters in dispute in the two above-noted court files were heard together with the consent of the parties. A six-day trial ensued in 2021. Originally, the parties estimated that three days of trial were sufficient, but the trial was not completed as scheduled in August 2021.

A further three days of trial were set for September 2021. This Court asked the parties to prepare written submissions which were received, in compliance with a

schedule for counsel to exchange arguments, in mid-November 2021. Brief Review of the Parties’ Positions [ 12 ] Given the volume of evidence, the documents received at trial, and the number of claims advanced, it is important and useful to

outline the context of the dispute and the various issues at the beginning of these reasons. The claimants’ view [ 13 ] The claimants say Ms. Whitehall wrote the Script, which she intended to make into a film. Ms. Whitehall financed the Film and was the executive producer. All of this was done through her company Whitehall Entertainment. Accordingly, the claimant Whitehall Entertainment asserts sole ownership of the Film and copyright in the Film. [ 14 ] The claimants want the return of the following items from Ms.

Kaffka, namely: the Film itself (digital footage) as a work under the Copyright Act , the physical hard drive(s), which contains the digital footage of the Film, and props and wardrobe items. [ 15 ] The claimants also say that under s. 3 (

d) of the Copyright Act , the author of a work is the first owner of copyright. They note that no copyright can be assigned unless there is a valid written assignment. Moreover, the claimants maintain that under s. 3 of the Act , Ms. Whitehall and the production company she controls, Whitehall Entertainment, have the sole right to reproduce the work (i.e. the Script). This means that Whitehall Entertainment controls who can reproduce it. [ 16 ] The claimants further say Ms. Whitehall engaged Ms. Kaffka as a director for the Film in April 2017. Ms. Whitehall maintains that due to a dispute she terminated Ms.

Kaffka’s engagement on June 16, 2017, on behalf of Whitehall Entertainment. The claimants advance a number of bases for a claim to damages, including, but not limited to, copyright infringement, breach of contract, infringement of moral rights, and conversion. The defendants’ view [ 17 ] The defendants assert that the Civil Resolution Tribunal decision of May 2018, is irrelevant in this matter. The claims made by the parties have been much expanded since the matter was before the Civil Resolution Tribunal. They say a central issue is whether Whitehall Entertainment has sole copyright in the Film.

A secondary issue is whether the defendants, in particular Ms. Kaffka, infringed any copyright pertaining to the Film. The defendants say that ownership of copyright in the Script is not determinative of ownership of the Film or copyright in the Film. [ 18 ] Moreover, Ms. Kaffka says that copyright in the Film is distinct from copyright in the Script. Ms. Kaffka maintains she is a co- author and maker of the Film and thus co-owns the copyright in the Film. She further asserts there was an oral agreement between her and Ms. Whitehall to share ownership, any profits, and to receive credits in the Film.

Moreover, Ms. Kaffka says that the parties entered into a common venture/joint undertaking to make the Script into a film and accordingly she is entitled to ownership of and copyright in the Film. [ 19 ] Ms. Kaffka maintains she provided legal consideration through “sweat equity”, namely, the time and effort she spent working during pre-production, production, and post-production of the Film. Additionally, Ms. Kaffka says she made financial contributions and provided industry contacts and other material requirements for the Film’s production. [ 20 ] Ms.

Kaffka acknowledges there was no written contract, which specifically set out her agreement with Ms. Whitehall, the principal of Whitehall Entertainment. However, there was an oral agreement reached with Ms. Whitehall during several telephone discussions. Ms. Kaffka maintains that she was never an employee of Ms. Whitehall or Whitehall Entertainment. [ 21 ] Ms. Kaffka says that when the relationship between her and Ms. Whitehall broke down, Ms. Whitehall reneged on her promises and claimed sole ownership of the Film. Ms. Kaffka maintains that she is a maker and/or a joint author of the Film.

She says she is a co- owner of the Film. Accordingly, there was no infringement of copyright, therefore no damages flow. [ 22 ] Further, with respect to damages, the defendants say this Film project was never intended to be a commercial revenue-generating venture. Moreover, the defendants assert that Kafka Pictures Inc. should not be a party. It was only incorporated in January 2019, about one year after the alleged infringing conduct took place. ISSUES [ 23 ] The issues in this case are about authorship, ownership, and copyright entitlement to the Film.

This will entail a consideration of authorship and ownership of the Script and whether there was any agreement between the parties about the ownership of the Film. Additionally, there are issues regarding infringement of copyright through various “activities” asserted by the claimants. Further, there are issues about whether Ms. Whitehall’s moral rights were infringed. There is also an issue regarding whether Ms. Kaffka entered into a contract in her personal capacity with Whitehall Entertainment and, if so, whether she breached her contractual obligations. A further issue raised by the claimants is whether Ms.

Kaffka owed a duty of good faith to Whitehall Entertainment and whether she breached that duty. Moreover, there are issues regarding conversion and passing off. [ 24 ] The claimants did not pursue the claims they initially made regarding negligent misrepresentation, breach of fiduciary duty, or unlawful interference with economic relations. BACKGROUND The parties [ 25 ] Ms. Whitehall, has been a professional writer for approximately 35 years. She started working in her mid-20s as a music journalist. Later, she ran her own arts and entertainment magazine as a publisher and managing editor.

She moved to Vancouver in mid- 2000. She has “a day job”, in the communications department of one of B.C.’s major healthcare unions. Ms. Whitehall’s dream was to be a filmmaker. Therefore, when she moved to British Columbia in 2014 she incorporated Whitehall Entertainment, which is a film production company owned and controlled by her.

[ 26 ] Ms. Kaffka has worked in different capacities in the recording and film industry for some years. From mid-1990 to mid-2000 she worked as a songwriter/recording artist. During that time she produced and released four studio albums and toured in North America, Europe and Japan. Ms. Kaffka attended the University of the Fraser Valley for a business management program. She also went to the Vancouver Film School for courses in digital design and film production. In approximately 2002, Ms. Kaffka graduated from both programs. From 2002 to 2013, Ms.

Kaffka produced various music videos and also undertook marketing and digital design work projects. From 2004 to 2016 she worked in various roles in the costume departments of films including as a costumer, assistant costume designer, and set supervisor. She also worked as a script supervisor beginning in 2013. Writing the Script [ 27 ] Ms. Whitehall and her sister Lynda Finch wrote the Script called Hey, That’s My Bike! in late 2016/early 2017. On January 3, 2017, a Certificate of Registration of Copyright was issued by the Canadian Intellectual Property Office (CIPO).

That certificate shows on its face that an unpublished work titled Hey, That’s My Bike! was registered in the “dramatic” category. The owner is shown as Whitehall Entertainment Incorporated. The authors are shown as Ms. Whitehall and her sister Lynda Finch. The certificate was issued pursuant to ss. 49 and 53 of the Copyright Act . The background documentation filed to obtain that certificate and the documentation regarding ownership by Whitehall Entertainment was not tendered as evidence at trial. How Ms. Whitehall met Ms. Kaffka [ 28 ] Ms. Whitehall and Ms.

Kaffka met in mid-March 2017, on the film set of The Curtain , which was the first short film Ms. Whitehall made as executive producer. Ms. Whitehall and her sister Lynda Finch had written the script for The Curtain . Ms. Kaffka was the script supervisor on that film. She had been asked to help in that capacity by Crystal Lowe who was the director of that film. [ 29 ] There is no dispute that The Curtain was Ms. Whitehall’s first venture in making a film. She candidly described herself as “a newbie”. During the two day filming of The Curtain , Ms. Whitehall told Ms.

Kaffka that she was brand new to the film industry and this was her first time producing a film. They also chatted about what was then Ms. Whitehall’s upcoming project, namely, Hey, That’s My Bike! It is undisputed that when Ms. Whitehall and Ms. Kaffka worked on The Curtain there were no issues on the set. They enjoyed working with one another on that project. [ 30 ] It is undisputed that there were no written agreements or contracts in place on The Curtain project. There were no assignments of rights from the cast or crew on The Curtain.

In particular, there is no disagreement that Crystal Lowe did not sign an assignment of rights as director of The Curtain . [ 31 ] It appears that The Curtain was shot over the weekend of March18 and 19, 2017. Following the weekend shoot, Ms. Whitehall and Ms. Kaffka connected via Facebook Messenger. It is not clear who initiated the contact. In any event, Ms. Whitehall sent Ms. Kaffka a copy of “the script we were talking about”, namely, Hey, That’s My Bike! [ 32 ] In the course of Ms. Whitehall’s and Ms.

Kaffka’s professional relationship during the lead up to shooting of the Film, the two of them communicated regularly in various ways including by Facebook Messenger, Gmail, possibly social media, and via telephone discussions. Ms. Whitehall testified that excluding the first day of trial in this Court, she had only met with Ms. Kaffka in person six times. The evidence led at trial establishes they met several times. [ 33 ] It is undisputed that during the course of the Film project, Ms. Whitehall was working at her “day job” and Ms. Kaffka was working on other film projects.

There is also no dispute that, shortly before the shooting of the Film was to commence, Ms. Whitehall was on vacation May 4 - 15, 2017, and during part of that time she was “off the grid”. Correspondence – late March to early May 2017 [ 34 ] Both Ms. Whitehall and Ms. Kaffka gave evidence at trial. I will address their evidence, and any issues about reliability and credibility that may arise, later in these reasons. It is not unexpected or surprising that there were differences in their recollection of events and the interactions between them as well as on the points they emphasized in their testimony.

A number of exchanges between Ms. Whitehall and Ms. Kaffka were recorded in Facebook Messenger and submitted as a printed record. Many of the electronic communications between Ms. Whitehall and Ms. Kaffka occurred during the period of March 20, 2017, to May 9, 2017. I refer to the Facebook Messenger exchanges as “text(s)” or “emails”. [ 35 ] The Facebook Messenger exchange between them began when Ms. Whitehall sent a text to Ms. Kaffka thanking her for everything she had done on the set for The Curtain . Ms. Whitehall sent Ms. Kaffka a copy of the script of Hey, That’s My Bike ! Ms.

Kaffka read the Script by mid-afternoon of March 21, 2017, and wrote back to Ms. Whitehall that she loved it. That same day, they also discussed The Curtain . Ms. Kaffka had a friend who she thought might be able to assist on the music score for The Curtain . At the same time, she and Ms. Whitehall also discussed some aspects of the Script. [ 36 ] Ms. Whitehall wrote another text to Ms. Kaffka in which she mentioned that she had an idea of including a “mysterious man” in the Script. It is obvious that she had Mr. Kaffka in mind for that role as she put his name in brackets behind the phrase “mysterious man”.

On March 25, 2017, Ms. Whitehall sent another version of the Script to Ms. Kaffka. She asked Ms. Kaffka to check it out. Throughout this period of correspondence, The Curtain was still being finalized. [ 37 ] On March 26, 2017, Ms. Kaffka wrote back to Ms. Whitehall that she liked the added layers to the Script. Ms. Whitehall told Ms. Kaffka she was going to send the new version to the two main male and female actors. She asked – “Do you have any changes/suggestions before I do?” Later on March 26, 2017, Ms. Whitehall sent a text which suggested she was thinking of Crystal Lowe as director for the Film, but Ms.

Whitehall was not sure whether Ms. Lowe would have time to do the Film. That afternoon Ms. Whitehall wrote to Ms. Kaffka: “If Crystal cannot direct, I’d love to have you direct. If she does direct, we’d love to have you as our script supervisor again”. Ms. Kaffka responded she was on board either way. Shortly after that exchange, on March 26, 2017, Ms. Whitehall sent a text to Ms. Kaffka asking: “If you end up as Madam Director, who would you have produce.”

[ 38 ] Ms. Kaffka wrote back with a thumbs-up emoji. She wrote that Ms. Whitehall should let her know how she could help in any way. Ms. Kaffka also wrote that she and her husband could produce it with Ms. Whitehall. Ms. Kaffka said both she and her husband had produced films and knew a lot of people because they were in the industry. Ms. Kaffka and Ms. Whitehall also had a brief exchange about how the grain of the Film should look. Ms. Whitehall replied that she was flexible.

She commented that she was “just a writer” and was happy to let the people who are experts in that area make those decisions with her. [ 39 ] Their text exchange continued that day. Ms. Whitehall wrote that she was having a difficult time getting moving on that Film project. She would love to work with a new team. She noted that some film festivals only allow one director’s submission per festival. Ms. Whitehall also felt Ms. Lowe was so busy that she probably would not take the Film project on. She suggested that she and Ms.

Kaffka should probably talk over the phone rather than through email. [ 40 ] In Facebook Messenger exchanges that occurred on March 28, 2017, Ms. Whitehall had questions for Ms. Kaffka about what happened to the props that were brought into a film. She thought it was a silly question for this “newbie”. Ms. Kaffka explained a series of options. [ 41 ] On March 30, 2017, Ms. Whitehall sent to text to Ms. Kaffka via Messenger that as soon as she was finished with The Curtain she was going to talk to Ms. Lowe about the Film. Ms.

Whitehall said she wanted the Film ready by June 30, 2017, for the next round of the film festival submission deadlines. On April 1, 2017, Ms. Whitehall wrote to Ms. Kaffka and told her she had sent the Script to a friend in Ireland. Her friend loved the addition of the mystery man. Ms. Whitehall thought she could now send the Script to the actors but asked Ms. Kaffka what she thought. [ 42 ] On April 3, 2017, Ms. Whitehall wrote to Ms. Kaffka and told her that she had finally connected with Ms. Lowe and Ms. Alexander. They were too busy to do the Film in the time frame Ms. Whitehall wanted. Ms.

Whitehall wrote that if Ms. Kaffka was still interested, she would love to have her direct the Film. Ms. Whitehall also wrote that it would be, “with you, Erick and I producing?” She was looking at May 27 – 28, 2017, to shoot the Film. However, Ms. Whitehall acknowledged, they might need more time than that. Ms. Kaffka wrote back saying she would love to do so. She had a ton of ideas and as well had the name of a possible producing partner. [ 43 ] On April 4, 2017, Ms. Whitehall wrote back saying that was wonderful news. She told Ms.

Kaffka she was going to move their conversation over to her Gmail account because it was easier to keep track of things. She was on her email more than she was on Facebook. In spite of that, some correspondence still continued on Facebook Messenger. They discussed some of the actors who were being considered for the Film. Ms. Whitehall wrote, on April 8, 2017, that she had re-worked the Script and was going to send a copy to Ms. Kaffka. [ 44 ] On April 9, 2017, Ms. Whitehall wrote to Ms. Kaffka that she was going to put together a list of characters with names of actors who might fill those roles. Ms.

Kaffka wrote back that if Ms. Whitehall wanted to work on the cast list, Ms. Kaffka would start working on the crew list. At that point, Ms. Kaffka thought they had makeup, costume, a script supervisor, a composer and the editor almost in place. Ms. Kaffka also wrote that she found a dress that would be perfect for the lead actor and sent a photo of it to Ms. Whitehall. That same day Ms. Whitehall wrote to Ms.

Kaffka to let her know that she was sending an email for her review and in particular a proposed budget. [ 45 ] Facebook messages were exchanged on April 10 and 11, 2017, about various things that had to be done. In one message on April 10, Ms. Kaffka suggested they did not need a production designer. They made plans to meet, at first it was going to be for lunch, but later Ms. Whitehall suggested it be for coffee. They were going to review the locations for the Film shoot downtown. In one of the emails, Ms. Kaffka told Ms. Whitehall that there may be some costs for post-production.

However, she thought it was okay because there were other areas from which they could take money and still be under budget. [ 46 ] On April 13, 2017, Ms. Whitehall sent Ms. Kaffka an early morning message. It appears from that message that Ms. Kaffka was going to speak to Ms. Lowe to see if she would play the role of cop in the Film. Ms. Whitehall was concerned that some actors might not do the roles for free, even though it was under the UBCP 20/20 contract, which allowed union actors to work on a project for no pay. In that message Ms. Whitehall also confirmed a meeting the following day when she and Ms.

Kaffka were meeting for coffee at Blenz. [ 47 ] On April 15, 2017, Ms. Whitehall wrote to Ms. Kaffka saying that she had watched the director’s cut (presumably of The Curtain ). It was choppy and there were other issues. She asked Ms. Kaffka if she could privately send Ms. Kaffka the director’s cut for her input ASAP. She needed this so she could provide feedback to Ms. Lowe. Ms. Whitehall wrote that she needed another professional opinion. [ 48 ] At the same time, Ms. Whitehall and Ms. Kaffka were writing about other steps they were taking with respect to the Film.

On or about April 15, 2017, they were working on the IMDb pages together and talking about it. That same day Ms. Kaffka wrote to Ms. Whitehall that she was starting a Facebook page for the Film. Furthermore, the two of them discussed issues about the URLs etc. It was clear from the messages that Ms. Whitehall and Ms. Kaffka were working on the various social media pages together. [ 49 ] On April 15, 2017, Ms. Whitehall wrote to Ms. Kaffka specifically asking her if they were “public” about Ms. Kaffka being the director on the Film. Ms. Kaffka said, “Yes”. [ 50 ] On April 16, 2017, Ms. Whitehall wrote to Ms.

Kaffka that she had created a project page for Withoutabox and Film Freeway. She was getting ready for the film festival submissions. On April 16, 2017, Ms. Whitehall also wrote to Ms. Kaffka about meeting again so that she could give Ms. Kaffka some petty cash. Ms. Kaffka wrote back suggesting that she do it by e-transfer. [ 51 ] On April 18, 2017, Ms. Kaffka wrote to Ms. Whitehall to let her know that she and her husband Mr. Kaffka were researching insurance, permits and so on. [ 52 ] On April 26, 2017, Ms. Whitehall wrote to Ms.

Kaffka and suggested they needed to organize a cast meeting before the shoot to discuss the script, storyline, and characters. Ms. Whitehall wrote she was going to be away May 4 - 15. In a later message on April 17, 2018, Ms. Whitehall said she was leaving on the Thursday, early morning, and was going to be away until the night of May 15. Ms.

Whitehall said she would be “off the grid” for part of that time. [ 53 ] On May 1, 2017, Ms. Whitehall wrote to Ms. Kaffka to ask if she had made changes on the IMDb pages. Ms. Whitehall sent her a screenshot. Ms. Whitehall wanted to make sure that everyone was credited on the cast list. Ms. Whitehall said that she would make the change but she did not know how to rank the actors on IMDb. Ms.

Whitehall explained again that she was going to leave early on Thursday for two weeks and would be off grid for part of the time. [ 54 ] The correspondence through Facebook Messenger filed in evidence ended on the evening of May 9, 2017. There are further communications between the parties but the majority of the narrative about their business and personal relationship arose in their testimony. Discussions late April/May 2017 [ 55 ] At trial Ms. Kaffka testified that approximately one month before they started shooting the Film she had a telephone discussion with Ms. Whitehall.

The details of this conversation and other exchanges between Ms. Whitehall and Ms. Kaffka are set out in more detail in a subsequent

section of this decision. At this point, I will simply summarize the broad strokes of those discussions based on the evidence provided by Ms. Kaffka and Ms. Whitehall. [ 56 ] The first discussion referred to by Ms. Kaffka (in late April or early May 2017) was a telephone discussion between Ms. Kaffka and Ms. Whitehall. Ms. Kaffka was at her home office and she took the call over the speakerphone. Her husband was in the office at that time. Ms. Kaffka’s evidence is that during that initial discussion she asked Ms.

Whitehall for a co-executive producer credit as well as co- ownership and a split of the profits, if the Film made any money. In making that request, Ms. Kaffka said she explained the “sweat equity” she and her husband were putting into the Film, the additional work they were doing, and that both she and her husband would need to take time off work. [ 57 ] Ms. Kaffka said the outcome of that first telephone discussion was that Ms. Whitehall agreed Ms. Kaffka would get the co- executive producer title and co-ownership of the Film and they moved on from there. Ms.

Kaffka said after that first telephone conversation she kept asking Ms. Whitehall for written confirmation. In the meantime, Ms. Kaffka did not announce the agreement to anyone or change the title she was using on her correspondence. Ms. Kaffka assumed the agreement she had reached with Ms. Whitehall was going to stand. [ 58 ] Ms. Whitehall in her testimony said that the agreement she had with Ms. Kaffka was the same as she had with Ms. Lowe and Ms. Alexander on The Curtain . She did not give details but said the business set up for the two films was the same. She also said she discussed the roles with Ms.

Kaffka as well as Ms. Ashley and Ms. Alexander. In cross-examination Ms. Whitehall said she and Ms. Kaffka had never discussed Ms. Kaffka having a co-executive producer credit. The only time there was such a discussion was when Ms. Kaffka, as Ms. Whitehall saw it, made a threat on the telephone that if Ms. Kaffka did not get co-executive producer credit, she was going to shut down the shooting of the Film. [ 59 ] Ms. Kaffka testified about the numerous tasks she carried out leading up to the filming weekend, which were in addition to performing her role as director and producer. Ms.

Kaffka said she made sure they were legally covered for everything. She visited the locations. She also worked with her husband, who was doing a lot of work on the business end of the Film project. [ 60 ] Ms. Kaffka said that, leading up to the Film shooting weekend, she had discussions with Ms. Whitehall about marketing. According to Ms. Kaffka, she was supposed to set up the various social media pages. Ms. Kaffka set up a Facebook page and also bought a domain for a website. She had not designed the website at that point because that was supposed to come later. However, Ms.

Kaffka put the website up a few days before they went to camera. Ms. Kaffka said Ms. Whitehall sent her a synopsis and a little blurb of what she wanted on the social media profiles. Ms. Whitehall also sent Ms. Kaffka a photograph she wanted Ms. Kaffka to use. Ms. Whitehall said all the things she did with respect to the social media pages were with Ms. Whitehall’s knowledge. [ 61 ] Ms. Whitehall testified that leading up to the Film shooting weekend she had concerns about Ms. Kaffka. According to Ms. Whitehall, Ms. Kaffka was rude, belligerent, and abusive. According to Ms. Whitehall, Ms.

Kaffka was “gaslighting” her. Ms. Whitehall also said Ms. Kaffka accused her of incompetence, and of not being able to do even one task, such as keeping track of documents and emails. Ms. Whitehall said Ms. Kaffka told her that everyone hated her and no one wanted to work with her. Ms. Whitehall was quite shocked. Ms. Whitehall was not specific about when these things occurred or the context in which they occurred. May 25, 2017, discussions [ 62 ] According to Ms. Whitehall, everything came to a head on May 25, 2017. Ms. Whitehall was dealing with a contract from the City of Vancouver, which needed to be signed.

The WCB number was missing so she contacted Ms. Kaffka and her husband about it. She also needed a minor form to be completed for Ms. Kaffka’s daughter. This was a requirement by the UBCP and had to be completed and returned before filming could begin. Ms. Whitehall said there was a flurry of emails back and forth about the contract and the minor form. She received a telephone call from Ms. Kaffka, who was yelling and screaming at her. She said Ms. Kaffka again questioned her competence and again told her everyone hated Ms. Whitehall and no one wanted to work with her. [ 63 ] Ms. Whitehall said that Ms.

Kaffka then “blackmailed me”. According to Ms. Whitehall, Ms. Kaffka told her that if Ms. Whitehall did not give her a co-executive producer credit she was going to shut “this thing down”. Ms. Kaffka also told her that she had a house full of people listening to the conversation who were ready to walk with her. Ms. Whitehall said Ms. Kaffka slammed down the phone and hung up on her. Ms. Whitehall was shocked. She ended up agreeing but only to the co-executive producer credit and nothing more. [ 64 ] Ms. Whitehall said she was so distraught by what had occurred with Ms.

Kaffka that she called a social worker friend of hers. As the emails from Ms. Kaffka came in, she read them to her friend over the telephone and asked her friend what she should do. Ms. Whitehall responded to an email Ms. Kaffka sent her and agreed to the co-executive producer credit. She said that Ms. Kaffka told her not to come near her on the set when they were shooting the Film. Ms. Whitehall said Ms. Kaffka further stated that if Ms. Whitehall

interfered with the directing, she was going to pull the crew and walk. Ms. Kaffka denied this. [ 65 ] Ms. Kaffka’s evidence about the breakdown of the relationship was that a few days after Ms. Whitehall returned from her trip in mid-May 2017, Ms. Whitehall began doubling up on work, which had already been done. Ms. Kaffka said Ms. Whitehall contacted UBCP, the insurance company, and also did other things that had already been completed. Ms. Whitehall was micromanaging. This was frustrating and felt insulting because Ms. Kaffka and her husband had already done a lot of the work. [ 66 ] Moreover, Ms.

Kaffka was concerned because she had still not received the written agreement about her role in the Film. Ms. Kaffka also testified about the minor form and the City of Vancouver contract. With respect to the minor form, Ms. Kaffka said that had already been done and placed in a Dropbox. When she heard from Ms. Whitehall, who copied her on an email, she responded directly to Ms. Adrienne Law from UBCP and sent her a copy of the minor form. Ms. Kaffka also said there was no issue with a WCB number.

It was not needed because the people who were helping on the Film shoot were not receiving payment so, as I understood it, WCB did not apply. [ 67 ] Ms. Kaffka’s testimony about what happened on the May 25 phone call differs in some material respects from that of Ms. Whitehall. After she had sent Ms. Law a copy of the signed minor form, with a copy to Ms. Whitehall, Ms. Kaffka believed that was the end of the story. However, she received an email from Ms. Whitehall in which Ms. Whitehall told her she was unprofessional. Ms. Whitehall also wrote that they needed to talk or they would not be filming that weekend.

Ms. Kaffka viewed that as a threat. It was her understanding of the email that Ms. Whitehall was going to call off the shooting of the Film. [ 68 ] At that point, Ms. Kaffka and her husband were at their home loading the truck with the help of various friends and some crew members so that they could be ready for the Film shooting weekend. Ms. Kaffka stopped everything she was doing because she wanted to figure out what was going to happen. Ms. Kaffka said she sent an email to Ms. Whitehall to the effect that if Ms. Whitehall was going to threaten her, Ms.

Whitehall should call her or it was going to be off for the weekend. At that point, Ms. Kaffka was in her home office. Her husband was there and so was Ms. Bazuta. When the phone call came in she took it on her speaker phone. [ 69 ] During that telephone call, Ms. Kaffka told Ms. Whitehall her concerns about how Ms. Whitehall was talking to people and treating people. She also told Ms. Whitehall she wanted their prior agreement in writing. She wanted everything clarified in an email. According to Ms. Kaffka, Ms. Whitehall told her she was busy and she was at work. She told Ms. Kaffka that if Ms.

Kaffka sent her an email, Ms. Whitehall would email her back with an agreement. Ms. Kaffka prepared an email and sent it to Ms. Whitehall. After sending out the email to Ms. Whitehall on May 25, 2017, at 12:18 PM she received a reply which simply stated “Agreed”. [ 70 ] Ms. Kaffka said in that phone call she raised with Ms. Whitehall the co-executive producer credit, co-ownership and profits if any. The Film shooting weekend [ 71 ] Ms. Whitehall testified that her interaction with Ms. Kaffka before the Film shooting weekend was not the end of the matter. The shooting proceeded but at some point, according to Ms.

Whitehall, Ms. Kaffka told her not to go near her and further told Ms. Whitehall that if she interfered in the directing, Ms. Kaffka would pull her crew and walk. Ms. Whitehall said she went around the set taking photographs, thanking the crew, and having little conversations with the crew. She had not met any of the crew before. They were all new people. [ 72 ] Ms. Whitehall said she provided her apartment, which was to be a holding tank for the cast and the crew. It was where everyone congregated to get their costumes, their hair and makeup completed, and so on. Ms.

Whitehall said the first assistant director went directly to her whenever decisions had to be made, this included when they were behind schedule. Ms. Whitehall said she had to contact Mole Hill to arrange for a later shooting time. This cost her more money because they were paying a liaison person at that location an hourly rate. Ms. Whitehall also said she had to make arrangements with the XY nightclub to shoot later because they were running behind schedule. Ms. Whitehall said anything that had to do with logistics or money had to come from her as the executive producer.

She was in charge of the Film set and the safety and comfort of the team. [ 73 ] Both Ms. Whitehall and Ms. Kaffka testified about the Film shoot and issues/problems they say arose. That evidence was considered but is not set out in these reasons. Post-shooting weekend [ 74 ] It is apparent from the post-shooting weekend documentation and from the testimony of Ms. Whitehall and Ms. Kaffka that their relationship did not improve after the filming weekend. Ms. Whitehall’s perception was that Ms. Kaffka continued to be abusive and belligerent in emails after the Film shoot. Ms.

Whitehall said she tried working with Ms. Kaffka to shoot a third day, however, things escalated again. She said Ms. Kaffka was incredibly rude. Ms. Whitehall also noted that in an email dated June 2, 2017, Ms. Kaffka wrote that if Ms. Whitehall did not agree with her terms she would contact her entertainment lawyer to mediate. [ 75 ] On the other hand Ms. Kaffka testified that after the Film shooting weekend she began returning equipment, which involved some driving around. She returned home and tried logging into the Facebook page she had created for the Film to send a message to everyone to thank them.

However, she found that Ms. Whitehall had blocked her from the Facebook group page. Both Ms. Kaffka and Ms. Whitehall had administrative privileges on the Film’s Facebook page. She also found that Ms. Whitehall had blocked her from Ms. Whitehall’s personal Facebook page. [ 76 ] Ms. Kaffka testified that Ms. Whitehall had not raised any complaints or dissatisfaction with the work Ms. Kaffka had done during the Film shooting days. When Ms. Kaffka had seen Ms. Whitehall on set, Ms. Whitehall appeared to be in a good mood. When Ms. Kaffka found out that she had been blocked from the Film’s Facebook page and Ms.

Whitehall’s personal Facebook page that came out of the blue. Ms. Kaffka said she was also blocked from other things as well. Ms. Kaffka acknowledged she was still able to send emails to Ms. Whitehall. However, she decided to give Ms. Whitehall some space. The only emails she sent Ms. Whitehall related to receipts and invoices for the Film.

[ 77 ] On the morning of June 1, 2017, Ms. Kaffka sent Ms. Whitehall an email forwarding invoices. She said she was “wrapping out” and did not have a lot of time that weekend. She also said she was still looking for the yoga mat. Ms. Whitehall replied later that afternoon asking for a specific invoice and also said they needed to talk. Ms. Whitehall said she was the executive producer and whether Ms. Kaffka liked it or not they needed to communicate to get the project finished. There was some back-and-forth communication. Later that evening Ms. Whitehall wrote to Ms. Kaffka that Ms.

Kaffka had been completely inappropriate with her. Further, she said Ms. Kaffka owed her an apology. She said that no one spoke to her the way Ms. Kaffka had spoken to her on Thursday, presumably referring to May 25, 2017. She called Ms. Kaffka’s behaviour outrageous and said she had never worked with anyone so unprofessional in her life. [ 78 ] Ms. Kaffka testified that Ms. Whitehall was away right after the filming for about two or three weeks. Ms. Kaffka simply continued doing post-production activities as she normally would.

That included working on a director’s cut, which was what had been agreed would be sent to film festivals. Ms. Kaffka sent an email to everyone on June 1, 2017, advising what needed to be done going forward. [ 79 ] Ms. Kaffka also wrote an email to Ms. Whitehall on June 2, 2017, about the status going forward. Presumably this was a response to Ms. Whitehall’s June 1, 2017, email. She addressed the concerns that Ms. Whitehall had raised about her behaviour and wrote that she was defending herself against someone who was pushing her around. In that letter Ms.

Kaffka set out a proposal about what she would do going forward as well as her terms. [ 80 ] Ms. Whitehall sent an email to Ms. Kaffka on June 5, 2017. It is not clear whether this was in response to the June 2 email. Ms. Whitehall acknowledged that it was unfortunate they had gotten to such terrible place in their working relationship. She wrote they shared a common goal of wanting to complete the Film. She further set out her position on what she was prepared to do with respect to the Film. That included granting Ms.

Kaffka co-executive producer credit after the Film was completed but on the condition that it was for credit purposes only and that it did not give Ms. Kaffka any rights or ownership of the Film. [ 81 ] Their relationship did not improve. Ms. Whitehall contacted her lawyer Mr. Meller. He sent a letter to Ms. Kaffka, which attached a termination letter from Whitehall Entertainment. Both letters were dated June 16, 2017. Mr. Meller wrote that Ms. Kaffka was terminated because she had proved to be incapable of directing the Film. Ms.

Whitehall testified that she needed to protect her investment and the standard of film she wanted to create. [ 82 ] Ms. Kaffka responded in an undated letter, which was apparently sent on June 20, 2017. In that letter Ms. Kaffka set out a detailed response to the letter she received on June 16, 2017. In that letter she also set out her position on various matters. Later on July 10, 2017, Mr. Meller sent a cease-and-desist letter to Ms. Kaffka. [ 83 ] Both Ms. Whitehall and Ms. Kaffka testified about a number of other matters relating to their relationship and to the shooting of the Film. In particular, Ms.

Whitehall addressed specific allegations of infringement and Ms. Kaffka responded. Some of their testimony in this regard is set out in the analysis

section of this decision. Evidence of other witnesses Angela Galanopoulus [ 84 ] The claimants called Ms. Galanopoulus, an actor, who played the lead female character in the Film. She first met Ms. Whitehall in the summer of 2015. In late 2016, Ms. Whitehall asked if she would be interested in a dramatic role. In early January 2017, she received a full Script but it was not properly formatted for a screenplay. [ 85 ] Ms. Galanopoulus said she had received a note from Ms. Whitehall sometime in April 2017, in which Ms.

Whitehall mentioned that she was meeting with two different directors, but had not decided which one she was going to go with. Ms. Galanopoulus testified that to her knowledge Ms. Kaffka did not make any substantive contributions to the story. Ms. Galanopoulus acknowledged that on or about May 18, she received a final Script for the Film. She said did not receive a new script on May 27, the day they were shooting. [ 86 ] In direct, Ms. Galanopoulus was asked how she would describe Ms. Kaffka’s behaviour. She said the first thing that came to mind was that they were running behind

schedule fairly early into the production, both on the first and second day. She believed this caused some confusion and frustration and resulted in certain scenes being pushed to be shot at a later day. One of the examples she gave was that there appeared to be more shots taken than were necessarily needed. It appeared to her that “it” was in disarray fairly frequently. At the time, Ms. Galanopoulus had worked on five film sets. [ 87 ] She was not aware that sometime after the Film was shot Ms. Whitehall terminated Ms. Kaffka’s role as director of the Film. She did not hear Ms. Kaffka say anything about Ms.

Whitehall on set. She was specifically asked if she was aware of any friction between Ms. Whitehall and the cast and crew of the Film. Ms. Galanopoulus said not to her knowledge. Ms. Galanopoulus said she did not receive the red dress that she wore in the production. [ 88 ] In cross-examination, Ms. Galanopoulus said she believed she read the entire story, in other words, she read every version of every Script that was given to her. She was aware there was an added part for Ms. Kaffka’s husband. To her that was a very substantive addition. It was a very different version.

The endings were discussed at length. [ 89 ] Ms. Galanopoulus explained that her character was featured throughout the Script. She was in virtually every scene. There was no dialogue in the Script but she read it from beginning to end to really understand if there were any changes in it. She acknowledged there were multiple revisions made to the Script. She acknowledged that some of them were sent to her by Ms. Kaffka. Ms. Galanopoulus was aware that what was to be an initial scene of her riding a bike on the seawall was not shot.

She was not aware that scene was not shot because there was no permit from the City of Vancouver to film on the seawall. [ 90 ] Ms. Galanopoulus acknowledged there was no tension between her and Ms. Kaffka. There was also no tension between Ms. Whitehall and the cast and crew. She was asked whether there was any tension between Ms. Kaffka and the cast and crew. She said Ms. Kaffka in her role as director seemed to be overwhelmed with the pace at which they were going. However, she did not observe Ms.

Kaffka having any interactions with the cast and crew. She did not recall seeing Ms. Kaffka getting angry at anybody. She did not observe any tension between Ms. Kaffka and the cast and crew. [ 91 ] Ms. Galanopoulus was not directly a party to any of the dealings between Ms. Whitehall and Ms. Kaffka in relation to their business relationship. She was never in the room with them or on the phone with them. [ 92 ] Ms. Galanopoulus was asked whether she had ever signed a contract with Whitehall Entertainment as an actor. She could not recall.

She was asked if she ever signed an assignment of any of her rights to Whitehall Entertainment. She said to her knowledge she did not, but she could not recall. Theodore Kim [ 93 ] The claimants called Mr. Kim. They wanted him qualified as an expert so that he could give opinion evidence about the typical obligations and duties of a director and producer in relation to short films and specifically in relation to independent low-budget films. The defendants had no objection to Mr. Kim being qualified in that regard. [ 94 ] Mr.

Kim testified that in a typical short film production the person who schedules the scenes and decides the order in which the scenes are shot is the assistant director. The producer and director could have some influence on that, so could the schedules of the actors. If the assistant director is not the person on set who does that, it would more likely be the producer rather than the director who would okay the

schedule of shots. [ 95 ] Claimants’ counsel asked Mr. Kim whether the director of a short film typically works with the executive producer during pre- production, production, and post-production phases, including editing. Mr. Kim said that ultimately the boss is the executive producer and the producer. He also said producers have the power to fire, so they are the boss of the project. However, it really depends on the relationship between the director and the producer. If the producer is confident about the director, they will perhaps be more hands-off in the pre-production, production, and post-production.

However, producers and executive producers always check-in on how things are going and to make sure things are on time and look the way the producers/executive producers want them to look. However, Mr. Kim said it depends. There are some producers and executive producers who are really hands-on and others who sort of trust the director to make the right decisions in the editing room. [ 96 ] Claimants’ counsel asked Mr. Kim whether an executive producer of a short independent low-budget film would have the power or ability to fire a director, if he/she was not happy with the director’s work. Mr.

Kim said that was correct, assuming of course that the director had not written the script. He said some directors also become producers as well. However, if it is not the director’s story and if the director has “been strictly hired to direct”, then the director can get fired if he/she drops the ball. By that he meant if the director makes a mistake or just anything like showing up late, etc. [ 97 ] Mr. Kim described the roles of different individuals who would typically approve the final cut of the film. Mr. Kim said the producer is the boss.

The director can have suggestions or make recommendations but the producer approves it. The producer has the final say. [ 98 ] Claimants’ counsel asked Mr. Kim, based on the variations of the producer’s role, who would be the ultimate boss or final decision-maker. Mr. Kim said that in a short film it would be the executive producer. Mr. Kim also said that in a typical short film production, producers are sometimes given a credit in lieu of pay. He was asked to describe what the term “in-kind” meant. Mr.

Kim said that some people get compensated by an honorarium, like a flat rate, or a gift or get a credit. [ 99 ] In cross-examination, Mr. Kim said that in a typical short film the producer is given credit for his work as a producer. Some producers get paid. But producers will always be given credit as producer. However, depending on the budget, producers may take no money or take an honorarium. He said taking no money is not necessarily a rule; it is done by choice. He agreed that a producer can discuss and negotiate any arrangement. A producer could take a percentage of the budget for compensation.

For the love of a project, some might put the money back into the project. However, they will always have a credit as a producer. He agreed that the credit is not always in lieu of pay. [ 100 ] Mr. Kim acknowledged he was never on the set of the Film. Defendant’s counsel asked Mr. Kim whether he was suggesting that what he described in his evidence as an expert specifically applied to the Film. He said that he was talking about films in general, about what would be the typical and proper way things happened. Mr. Kim agreed he had absolutely no knowledge about any agreement between Ms. Whitehall and Ms.

Kaffka. [ 101 ] Mr. Kim agreed that in the typical role of a producer, that person would put together a distribution plan. Mr. Kim agreed he was referring to producers but acknowledged that some executive producers sometimes wore two hats. [ 102 ] Mr. Kim agreed that social media creation and content was the sort of task for which a producer would be responsible. He also noted that sometimes the producer will try to get other people, like the cast and crew, to help promote the film through social media. [ 103 ] With respect to casting, Mr. Kim said producers help set that up.

However, usually casting is run by the assistant director and the director. The producer could sit in and decide and also have the final say. [ 104 ] Mr. Kim said that budgeting is typically a producer’s responsibility. He said usually there is a line producer. However, in ultra- low-budget films there is no line producer, so it would be the producer who does this. He said directors never get involved in the budgeting process, unless they are helping to produce the film. If they are strictly a director, they are not involved with the budget. [ 105 ] Mr.

Kim said a director has the right to be involved in all creative decisions. He also agreed it is the director who develops the look and feel of the film. With respect to scheduling, that would fall to the assistant to director, if there is one. He said creative input and character development could fall to both the director and the producer. He said that if the writer is on set, the writer may also assist in that regard.

[ 106 ] With this respect to script revisions, Mr. Kim said that could happen while they are shooting a film. Depending on the character or even how the director or producer see it, changes in the script dialogue and scenes can be made while shooting is in production. That typically falls to the person in the role of director. Defendants’ counsel asked Mr. Kim what would happen if a person was acting in both capacities as a director and a producer. Mr. Kim said, in that case, the person can do whatever they like in terms of changing the script.

He agreed that the evidence he gave was about typical roles and obligations. However, he acknowledged, different arrangements may be made from case-to-case. He acknowledged there is not just one model for how an ultra-low-budget short, independent film is made. He said there is a formula, but it all depends on the relationship of the director and the producer and what they have agreed upon when going into the project. [ 107 ] Mr. Kim said there is no such thing as an independent short film handbook. He acknowledged there are filmmakers’ books, which cover large to low-budget films. There is a formula.

However, things can be changed and done differently from case to case. Nevertheless, there is sort of an industry standard. However, some things can change. He said it is really art they are making, so one can always make some changes. Mr. Kim said, in cases where the budget is low, the producer and the director can wear, and usually do wear, multiple hats and have responsibility for multiple departments. So a production manager typically is a producer. [ 108 ] Defendants’ counsel asked Mr. Kim if a director or producer would ordinarily perform the role of script supervisor. Mr.

Kim said “No” and the answer was the same for production designer. However, the role of a location manager might sometimes be done by a producer. He also said that in ultra-low-budget short films the producer usually brings the gear or picks it up. It is also the responsibility of the producer to make sure that everyone is fed. He agreed that these various roles and duties are interchangeable throughout the making of short films. Mr. Kim said it all really depends on the people-power a production has.

If the production does not have a lot of people, the producer may do five different jobs at once. [ 109 ] He also said that typically everyone, including cast and crew, have to sign paperwork as to the nature of the arrangement when they come into a project. For example, whether there is pay or no pay or whether it is going to be an honorarium. He said there were projects he had done where there were just verbal directions with nothing being signed. However, the proper way to do it is to get things signed. [ 110 ] Mr.

Kim acknowledged that many people have creative input into the filmmaking process, including directors. Defendants’ counsel asked whether it was a typical practice to have directors sign releases or assignments. He said “Yes”, when there is a release form for cast and crew, everyone will sign one, if there is one in that production. He acknowledged however that the terms of the typical agreements he testified about were based on the assumption that there was no contrary agreement between the parties. He acknowledged that the forms he mentioned were standard for everybody.

However, if there was a side deal or something private between the producer and the director then there could be another agreement. Erick Kaffka [ 111 ] Mr. Kaffka has worked in the film industry since 1995, including as an actor and key stunt performer in various films and productions. He also worked as an armorer in the film industry. He has worked with Ms. Kaffka on various productions and in producing and directing music videos, commercials, and short films. From 2016 to approximately 2020, he worked as a general manager of a flooring warehouse in Langley. [ 112 ] He met Ms.

Whitehall on the set of The Curtain . Ms. Whitehall told him about the Film, which was another film she was working on at the time. She asked if he and his daughter would be characters in the Film. This was before Ms. Kaffka was involved in the Film. Mr. Kaffka and Ms. Kaffka share a home office. She often uses the speakerphone. He was aware of correspondence between Ms. Whitehall and Ms. Kaffka. He specifically recalled a text in which Ms. Whitehall proposed that he, Ms. Kaffka and Ms. Whitehall could produce the Film. [ 113 ] Later on, after Ms.

Kaffka agreed to undertake the roles of director and producer, he and Ms. Kaffka realized the Film project was going to take a lot of work. That extra work included logistics, arranging cameras, lighting, locations, and related paperwork. This was around the time that Ms. Whitehall went away on vacation. [ 114 ] Mr. Kaffka also testified about hearing a telephone conversation between Ms. Kaffka and Ms. Whitehall, which occurred over speakerphone. As he recalled, the call was about the business side of the Film, which was turning into a much bigger job for Ms. Kaffka than just being director.

During that telephone conversation, Ms. Whitehall offered Ms. Kaffka co-ownership of the Film, profits, if any, as well as co-executive producer credit, which Ms. Kaffka accepted. [ 115 ] Mr. Kaffka also recalled another telephone conversation when he was in the office with Ms. Kaffka, who was talking to Ms. Whitehall. He testified he heard Ms. Kaffka ask Ms. Whitehall why she was not using proper titles. In particular, he heard Ms. Kaffka ask Ms. Whitehall about her title as co-executive producer. After that phone call he talked to his wife about what was going on. Ms. Kaffka told him what Ms.

Whitehall had promised to put the co-executive producer title in writing but had not done so. Ms. Kaffka also told Mr. Kaffka that she was reluctant to use the title on paperwork until she had it in writing. [ 116 ] Mr. Kaffka also testified about when the relationship between Ms. Kaffka and Ms. Whitehall began to break down. He said when Ms. Whitehall came back from vacation, which was close to the Film shooting weekend, her demeanour changed. She was somewhat abusive and aggressive with Ms. Kaffka and him and some of their volunteers. Mr. Kaffka said Ms. Whitehall’s tone changed.

She talked down to people and acted entitled. On a number of occasions, he heard her say things like - “I’m the executive producer”; “I am Whitehall Entertainment.” [ 117 ] Ms. Whitehall’s behaviour frustrated Ms. Kaffka, particularly in relation to people Ms. Kaffka had brought to the Film project as volunteers. Mr. Kaffka said Ms. Kaffka had called in favours so she was very protective. She was also concerned that Ms. Whitehall’s behaviour would jeopardize some of those relationships. [ 118 ] In particular, Mr. Kaffka testified about events on May 25, 2017. He did so by referring to an email from Ms.

Whitehall to Ms. Kaffka, in which she threatened to shut down the production. Ms. Kaffka was very upset by that email. His recollection was that Ms.

Kaffka called Ms. Whitehall to tell her about her concerns regarding how Ms. Whitehall treated people. He said Ms. Whitehall got very upset. Mr. Kaffka also said his wife told Ms. Whitehall how upset she was about the situation. She was going to quit as director unless Ms. Whitehall began treating people the way they should be treated. He heard Ms. Kaffka tell Ms. Whitehall that she wanted their agreement in writing before she would proceed. Ms. Whitehall asked Ms. Kaffka to put it in writing and she would respond. [ 119 ] Mr. Kaffka also testified about other things including post-production.

He said there was a bit of a time crunch with post- production because festival submissions were quickly coming up. He said they had a few pickups to do, namely, small scenes/inserts that did not get filmed and are added later. Ms. Kaffka was doing some editing and scoring of the Film project. He said they did the pickups, paid the crew, and bought them lunch. When the pickups were done Zakim Nuraney did the editing. As well, a special effects person did some work pulling colour out. They paid both the special effects person and the editor Zakim Nuraney. [ 120 ] Mr. Kaffka testified all of this work was done.

However, the strange thing, according to him, was that once the Film was put together, Ms. Kaffka received a letter saying that she was fired as the director. [ 121 ] Claimants’ counsel in cross-examination questioned Mr. Kaffka about the dates when various things occurred, specifically the telephone calls. Mr. Kaffka said there were two separate telephone calls regarding co-ownership and co-executive producer credits. One of the phone calls, about the business side of things, probably occurred one or two weeks before the second phone call, which was near the end of May. Mr.

Kaffka did not know the exact date but he believed the Film was shot May 27 and 28, and the second phone conversation occurred closer to the shooting dates. This was the conversation where there was a breakdown in the relationship. Both conversations were held over the speakerphone. In each case, Mr. Kaffka said, he could not recall the exact conversation. In particular, with respect to the second conversation, which occurred shortly before the Film shooting weekend, he recalled Ms. Kaffka was going to get co-ownership and co-executive producer credits. He said that was agreed upon and Ms.

Kaffka again asked for it to be in writing. Rebecca Matzov [ 122 ] Ms. Matzov was called by the defendants. She worked in the film industry, in both film and television, as well as in the commercials industry. She had worked with Ms. Kaffka in the past and was asked by Ms. Kaffka, approximately one week before the shooting of the Film, if she could assist in the production coordinator role. She testified that was work on backend details and paperwork. Ms. Matzov was also present on the two Film shooting days. During the shooting weekend she and several others were working mainly from Ms.

Whitehall’s apartment. [ 123 ] Ms. Matzov testified about Ms. Kaffka’s and Ms. Whitehall’s involvement during the Film shooting weekend. Ms. Matzov said on the first day they got a late start but she could not remember the details. However, once they were able to get going, things went smoothly. She said the crew was quite efficient. Although this was a short film, it nevertheless had to be shot in a number of different locations. For the most part, she believed things had gone smoothly. Ms. Matzov said she was the one who would receive or hear complaints and grumbles.

According to her, everyone seemed quite happy with how things were going. As far as she knew, there were no negative comments or anything else said about Ms. Kaffka’s professionalism on the Film shooting weekend. As well, she did not witness any tension between Ms. Kaffka and Ms. Whitehall. [ 124 ] In cross-examination, Ms. Matzov confirmed that as the production coordinator she was involved in handling and managing/organizing paperwork. She was also asked about various other agreements such as location agreements, cast agreements, cast releases, background releases, and other typical production documents. Ms.

Matzov said she would not have been responsible for any location agreements as those fell to the locations team. However, the other agreements claimants’ counsel mentioned, cast agreements or cast releases would fall between her and the assistant directing team. [ 125 ] Claimants’ counsel asked Ms. Matzov why no such contracts were in existence. Ms. Matzov said there were such contracts and they were entered into a Dropbox, which she could no longer access, and also placed into a physical binder. Ms. Matzov was specifically asked what agreements/releases were signed.

She said all the cast and crew signed a release because there was behind the scenes footage. As well, some of the crew appeared in a couple of scenes in the Film. With respect to actors, Ms. Matzov believed they had signed a deal memo and release form. [ 126 ] Claimants’ counsel suggested to Ms. Matzov that neither Ms. Kaffka nor Ms. Whitehall entered any agreements into evidence and that each of them had claimed that at least some of the agreements Ms. Matzov mentioned did not exist. She was asked to explain how that was possible. Ms.

Matzov said she and the assistant director, Matt Popp, had forms signed and they were put into a physical binder. Ms. Matzov gave the physical binder to Ms. Kaffka. Claimants’ counsel asked Ms. Matzov why the director had not signed the crew releases that she had just mentioned in her testimony. Ms. Matzov said that, as far as she knew, Ms. Kaffka did sign one. She explained that what she was referring to when she spoke of “release forms”, was a document that covers being in any of the footage behind the scenes.

She acknowledged that she believed the releases she was referring to were releases for appearing on screen. [ 127 ] Claimants’ counsel asked Ms. Matzov whether the crew and cast agreements that were signed included any clauses that addressed copyright associated with the performers. She asked for clarification of that question. Ms. Matzov said that the cast agreements that were signed did not address the performers’ copyright in their own performance. She said the actors’ deal memos addressed that point.

The deal memos address compensation and acknowledge that an actor does not have any copyright over the footage. [ 128 ] Claimants’ counsel pursued that issue. Ms. Matzov said camera operators on the Film, as far as she was aware, did not sign a document assigning copyright. Claimants’ counsel asked Ms. Matzov whether camera operators own any copyright in a film. There was an objection to that, which was overruled. However, in the course of addressing that objection this Court noted that Ms.

Matzov had been asked about a binder and what was in it, but that specifics of what was in the binder had not yet been raised in evidence. Claimants’ counsel asked Ms. Matzov whether any of the agreements in the production binder, specifically for those roles such as camera operator and other roles that involved copyright, contained any assignment of licenses coming from those roles. Ms. Matzov’s answer was, “No”. When asked whether it was important that such an agreement be signed, Ms.

Matzov said that it was not standard in short film productions and they were not held to the same usage standards. [ 129 ] Claimants’ counsel asked Ms. Matzov whether she had made a determination, in the context of this short Film that it was not

necessary to deal with copyright. She said they were given forms by Ms. Kaffka and those forms were filled out and that was the extent of the involvement that she had with the paperwork. Claimants’ counsel asked who was listed as the production owner in those forms. Ms. Matzov said it was both Ms. Whitehall’s production company and Ms. Kaffka’s production company. [ 130 ] Later in cross-examination, claimants’ counsel returned to questioning Ms. Matzov about “any type of production agreement” that may have been discussed.

She said the assistant director (presumably Matt Popp) had some of the forms that actors needed to sign and they each took half of what the crew needed to sign. Ms. Matzov confirmed she was in contact with the assistant director and discussed the signing of production agreements on the set. She also confirmed that management production agreements fall within the duties of a production coordinator. [ 131 ] In cross-examination, claimants’ counsel reviewed a letter of support Ms. Matzov had written. He specifically asked Ms. Matzov why Ms.

Kaffka was not listed as executive producer in any of the credits relating to the Film. Ms. Matzov said that, as far as she knew, Ms. Kaffka was listed. In answering that question, Ms. Matzov mentioned she had seen the Film in 2017. Her recollection was that Ms. Kaffka was credited on the Film as a producer. When questioned further, Ms. Matzov said, to the best of her knowledge, Ms. Kaffka was listed as executive producer in the end credits of the Film. Ms. Matzov was asked how she had seen the Film. She said it was at a screening.

She believed, as best as she could recall, that the screening was at a bar on Granville Street. She also believed that the screening had been organized by Ms. Kaffka. Heidi Bazuta [ 132 ] Ms. Bazuta was called by the defendants. She was the production designer on the Film. Leading up to the shooting weekend, she worked with Ms. Kaffka on advance preparations including sorting and gathering props and set decorations. [ 133 ] Ms. Bazuta was present in the room with Ms. Kaffka on May 25, 2017, when Ms. Kaffka had a telephone conversation with Ms. Whitehall. Ms.

Bazuta testified she heard both sides of the conversation. She said there was talk about Ms. Kaffka being given credit for being the director, of course, as well as co-executive producer. During the telephone conversation, Ms. Bazuta overheard Ms. Kaffka simply asking to receive certain assurances in writing. In cross-examination, Ms. Bazuta was asked whether prior to May 23, 2017, (sic) she had any interactions with the cast or crew who worked on the Film. She said she did not. She did not recall signing any documents in relation to the Film.

She did not recall signing a release or being asked to sign a release, either by Ms. Matzov or Ms. Kaffka. She could not recall whether the assistant director asked her to sign a release. She did not know whether or not any of the other members of the crew signed a release or were asked to do so. [ 134 ] In cross-examination, Ms. Bazuta was also asked about a letter of support she wrote for Ms. Kaffka. In that regard, she acknowledged that when she was describing the telephone call between Ms. Kaffka and Ms. Whitehall she overheard that the role or credit being discussed was for co-executive producer.

She also acknowledged that in her letter of support she had written she was aware that Ms. Kaffka was executive producer on the Film project. [ 135 ] Claimants’ counsel asked her why there was no reference to co-executive producer in her letter of support. Ms. Bazuta said the letter was written some time ago, although she acknowledged it was written closer to the time of production than the day she testified. She confirmed that the term she heard during the telephone conversation was “co-executive producer”. Ms.

Bazuta also said when the letter was written she was kind of using the term “executive producer” and “co-executive producer” interchangeably. She thought they were one and the same. POSITION OF PARTIES [ 136 ] Counsel for both parties have made fulsome written submissions on all the issues they raised at trial. In particular, they made nuanced written submissions regarding copyright infringement and contractual obligations and other issues.

In order to cut through the Gordian knot created by the parties’ arrangements to make the Film, which were at best naïve and at worst ill considered, I must consider the nature of their business relationship. In particular, I must consider the nature of any agreements they may have made, which have a bearing on the statutory obligations under the Copyright Act and the common law obligations relating to contracts and torts. [ 137 ] The claimants say the primary focus of this Court’s analysis should be on the question whether Ms.

Kaffka had the right to engage in various activities (which they listed) after the shooting dates of May 27 and 28, 2017. They say Ms. Kaffka did not have any legal right to engage in the activities after the shooting dates. According to the claimants, regardless of how one characterizes Ms. Kaffka’s actions (i.e. copyright infringement or breach of contractual terms) since Ms.

Kaffka did not have the legal right to engage in the activities, either way, the claimants have established their case and should be awarded damages . [ 138 ] Claimants’ counsel is correct that ultimately this dispute is about whether certain activities undertaken by Ms. Kaffka were wrongful either under the Copyright Act , under contract law or under tort law. However, in order to make that determination, I must consider and review the evidence and documents the parties presented at trial.

As is often the case, the devil is in the details. [ 139 ] I begin, for ease of reference, by setting out the impugned “activities” identified by the claimants. Those activities, which the claimants say were impermissible, are the following: • editing the raw Film footage used to create the Film without Ms. Whitehall’s input; • screening the director’s cut Ms.

Kaffka created of the Film, without authority, for certain crew members only; • posting the entire Film or clips of the Film on social media and on some online sites without authorization; • submitting the director’s cut of the Film to several film festivals; • marketing and promoting the director’s cut of the Film online;

• failing to provide a copy of the edited Film to Ms. Whitehall and Whitehall Entertainment; • failing to return certain items such as: props, clothing, and hard drives. [ 140 ] The claimants acknowledge that Ms. Whitehall, on behalf of Whitehall Entertainment, granted Ms. Kaffka a licence to direct and fulfil the role of one of the producers of the Film. The claimants acknowledge that such a licence can be implied from Ms. Whitehall’s request that Ms. Kaffka direct and act as a producer of the Film.

However, the claimants put a caveat on that acknowledgement, which I will deal with in the course of these reasons. The claimants assert that Ms. Whitehall made an oral agreement at or about the time she asked Ms. Kaffka to direct and produce the Film. According to the claimants, the nub of that agreement was that they granted Ms. Kaffka permission to direct and help produce the Film. However, such permission was contractual and conditional upon Ms. Kaffka following the instructions of the Film’s executive producer, Ms.

Whitehall. [ 141 ] Moreover, the claimants also assert that the activities in question were never approved by them. They maintain that by carrying out the activities Ms. Kaffka materially breached the agreement she had with the claimants, which allowed her the right to direct and produce the Film. In fact, they assert that Ms. Kaffka’s engagement with Whitehall Entertainment was brought to an end for cause, namely, the fact that she engaged in the activities. They say that when they terminated the contractual agreement between Whitehall Entertainment and Ms.

Kaffka, she lost her right to direct, produce, or do anything else in relation to the Script and the Film. [ 142 ] On the other hand, Ms. Kaffka maintains there was no specific agreement or hiring arrangement with Whitehall Entertainment. She says she merely agreed to help Ms. Whitehall as a volunteer. Moreover, she was not paid for any of her contributions. Ms. Kaffka says that in conversations with Ms. Whitehall it was agreed that Ms. Kaffka would direct the Film and that Ms. Kaffka, Ms. Whitehall, and Ms. Kaffka’s husband would produce the Film. [ 143 ] Ms.

Kaffka also maintains that, while she was volunteering in the role of director and producer, she and Ms. Whitehall made an oral agreement during a telephone conversation. Ms. Kaffka says that during that conversation Ms. Whitehall promised her co-ownership of the Film, co-authorship, and a share in the profits, if any. Later there was another agreement that Ms. Kaffka would also be co- executive producer. That agreement was made orally during a telephone conversation with Ms. Whitehall, and shortly thereafter confirmed by the exchange of emails. Accordingly, Ms.

Kaffka asserts, given those agreements, she was a co-owner and therefore could carry out the activities now objected to by the claimants. [ 144 ] With respect to the claim against Kafka Pictures Inc., the defendants say it should be dismissed because Kafka Pictures Inc. did not exist until January 17, 2019 , long after the alleged activities. [ 145 ] As is evident from this brief recital of the parties’ positions, the contract issues and the copyright issues are in some measure intertwined.

Accordingly, although the parties made submissions under these two respective headings, there is considerable crossover in the evidence. Moreover, there are also tort issues to be addressed. The parties’ positions on the various issues will be amplified in my analysis, as required. APPLICABLE LEGAL PRINCIPLES The burden and standard of proof [ 146 ] In considering this matter, I initially asked, as suggested by the claimants: How did Ms. Kaffka have the right to do what she did? However, after some consideration, I realized that by asking that question I was putting the proverbial cart before the horse.

Therefore, in assessing and analysing the matters in dispute, I remind myself that the claimants (not the defendants) have the burden of proof, on a balance of probabilities, to establish infringement of copyright, and/or breach of contract, and any of the other claims in issue. Ms. Kaffka may raise defences, but the ultimate legal burden of proof remains on the claimants throughout. Accordingly, at this juncture it is key to address where the legal burden lies in this case. [ 147 ] In Northland Properties Corporation v.

British Columbia , 2010 BCCA 177 , the Court of Appeal differentiated between the onus, persuasive burden, ultimate burden, or legal burden of proof, and other “evidential” and “tactical” burdens. Huddart J.A. explained the burden of proof as follows: The legal burden lies on the party whose responsibility it is to prove a fact or an issue to the required standard of proof. If the party who bears the l

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