2016 QCCQ 12427, 2016 QCCQ 12427

Fotohy c. Fardhesari 2016 QCCQ 12427 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL Civil Division No: 500-32-144536-143 DATE: November 7, 2016 ______________________________________________________________________ BY THE HONOURABLE NATHALIE CHALIFOUR, J.C.Q. ______________________________________________________________________ Nasrin Fotohy Plaintiff v. Sara Fardhesari Defendant ______________________________________________________________________ JUDGMENT [ 1 ] Ms. Fotohy, the Plaintiff, blames the Defendant, Ms.

Fardhesari, for the marketing failure of an academic textbook she produced. [ 2 ] Plaintiff is claiming $5,100, which amount breaks down as follows: $900 as reimbursement of her costs of production of the book and $4,200 in loss of income. [ 3 ] Ms. Fardhesari denies all responsibility and is counterclaiming Ms. Fotohy for $5,850, which amount breaks down as follows: $350 for unpaid fees for the realization of illustrations, $3,000 for copyright infringement and $2,500 for stress, troubles and disadvantages. The questions in issue:

(1) Is the Defendant liable for the marketing failure of the textbook?

(2) Did the Defendant violate the copyright of the Plaintiff?

(3) Is the counterclaim of the Defendant well founded? The facts: [ 4 ] From 2012 to 2014, Ms. Fotohy teaches Iranian on Saturdays at community events organized by an Iranian elementary school. [ 5 ] In 2013, she begins to develop a textbook of exercises and contents of apprenticeship which she wishes to use in her language classes. [ 6 ] In May 2014, Ms. Fotohy has been brought into contact with Ms. Fardhesari through an acquaintance. Ms. Fardhesari is an artist illustrator who works freelance to illustrate various literary works. [ 7 ] Ms. Fotohy presents her book project to Ms.

Fardhesari and they then come to an agreement to collaborate in the achievement of the book where Ms. Fardhesari is to illustrate the texts, the cover and the back of the book and design its layout.

[ 8 ] No written contract intervenes, it seeming unnecessary for the parties whom mutually trust one another. [ 9 ] Ms. Fotohy and Ms. Fardhesari agreed on a thirty to forty page book and discussed a $20 to $25 fee per page according to the total number of pages. Ms. Fardhesari also agreed not to charge additional work and to bill reasonably. [ 10 ] It was understood that the book had to be ready for marketing by September 2014 in order to allow Ms. Fotohy to benefit from the beginning of the school year. [ 11 ] On July 15, 2014, when more or less 50 % of the illustrations are ready, Ms. Fotohy pays $400 to Ms.

Fardhesari. [ 12 ] Rather quickly afterward, the parties are confronted with various disagreements. [ 13 ] Ms. Fotohy worries about the delivery deadline and fears a delay of Ms. Fardhesari’s work, which seems to favor other clients. [ 14 ] In August, 2014, thirty (30) pages are ready, but there is about ten other pages yet to be illustrated. [ 15 ] Ms. Fardhesari testifies that the ten additional pages were added at the last minute in regards with the delivery deadline. Ms. Fotohy denies it. [ 16 ] In the face of conflict, Ms. Fotohy offers to pay to Ms.

Fardhesari, in addition to the $400 already paid, $200 in complete payment for her work done throughout the thirty pages. [ 17 ] Ms. Fardhesari refuses the $200 payment and demands rather $350, which represents $25 per page. She also worries that another artist illustrates the last pages; the change of style of the illustrations does not suit her. [ 18 ] On August 24, 2014, Ms. Fardhesari signs a document Ms.

Fotohy presents her with, which foresees: « By signing this letter you are confirming that per our earlier discussion, you attest and sign that the page layouts with the writing and pictures of the book named Khaneye Batchecha (further to be called the work) belong to Nasrin’s Educational Services . With this you cannot share the work through any media digital, print or other or use any of the work in any future project ” . [1] (the Court underlines) [ 19 ] Ms. Fotohy, doing business under the business name Nasrin Educational Services , explains wishing to confirm her property rights on the book. [ 20 ] Ms.

Fotohy testifies that she then intended to pay to Ms. Fardhesari a royalty calculated on the sales of the book. [ 21 ] In September, 2014, Ms. Fotohy begins to offer to her pupils the textbook for twenty dollars ($20). [ 22 ] She testifies having sold only about twenty copies and blames Ms. Fardhesari for this failure. [ 23 ] Ms. Fotohy blames her for having published on Facebook, on or about September 15, 2014, about ten excerpts from the textbook, thus harming the sales.

She suggests that the pupils were able to be satisfied with excerpts and did not see anymore the utility to buy the book. [ 24 ] For her part, Ms. Fardhesari testifies to obtaining Ms. Fotohy’s agreement before the publishing of the excerpts on Facebook, the parties looking at benefitting from advertising the book through Facebook. [ 25 ] Furthermore, certain comments published on Facebook by Ms. Fardhesari about her disagreements with Ms. Fotohy seriously displeased the latter who complains about infringement of reputation.

Analysis: 1) Did the Defendant make the marketing of the textbook fail? [ 26 ] Under articles 2803 and 2804 of the Civil code of Quebec , the claiming party has the burden to prove the validity of its arguments by a preponderance of evidence. [ 27 ] Although the proof does not have to lead to an absolute certainty, it has to lead to the conclusion that the proof is reliable, convincing and clear. [ 28 ] As author Léo Ducharme teaches: « Lorsque la preuve offerte n’est pas suffisamment convaincante ou encore si la preuve est contradictoire et que le juge est dans l’impossibilité de déterminer où se situe la vérité, le sort du procès doit se décider en fonction de la charge de la preuve; celui sur qui reposait l’obligation de convaincre perdra. » [ 29 ] In this case, Ms.

Fotohy's only testimony is insufficient to demonstrate that the failure of the marketing of the book is the result of wrongful acts carried out by Ms. Fardhesari. [ 30 ] Indeed, the Court cannot adhere to the pretentions of Ms. Fotohy without proof justifying its reasonable prospects of success. [ 31 ] For example, in the absence of an explanatory proof of the textbook market, of the distribution network on which MS. Fotohy could rely on and of the number of pupils reasonably susceptible to be interested in the offer, the Court cannot conclude to

Ms. Fardhesari’s fault and liability. [ 32 ] The Court cannot either conclude in damage for loss of income. [ 33 ] The proof does not demonstrate that Ms. Fardhesari is responsible for the failure of the marketing of the textbook in dispute. 2) Did the Defendant infringe the copyright of the Plaintiff? [ 34 ] In this case, each party owns a copyright in its original artistic or literary works. [2] [ 35 ] By signing the document, which was presented to her on August 24th, 2014, Ms. Fardhesari did not assign her copyright in the illustrations, but rather confirmed Ms.

Fotohy’s exclusive right as editor of the textbook. [ 36 ] The CA, which vocation is to protect authors, requires, under article 13(4), the formality of a written document to aspire to an assignment of right. [ 37 ] Considering the objectives of the AC, which is of public order, and the terms of the document written by Ms. Fotohy, dated August 24, 2014 [3] , it cannot be interpreted as a cession of right. [ 38 ] Moreover, Ms. Fotohy agrees that her goal was to confirm her exclusive marketing and exploitation rights of the book; not the illustrations individually. [ 39 ] This being stated, did Ms.

Fardhesari infringe Ms. Fotohy’s texts’ copyright and her right to commercialize the textbook as editor by publishing excerpts on Facebook? [ 40 ] Ms. Fardhesari testifies having published the excerpts of the book on Facebook with the agreement of Ms. Fotohy whom saw there an advertising opportunity. [ 41 ] Ms. Fardhesari, who knows well the literary world for she works full time in the domain, knew that she had to obtain Ms. Fotohy's authorization to publish excerpts on Facebook. [ 42 ] Taking into account her testimony, rendered with sincerity and precision, and knowing that Ms.

Fardhesari makes her living as a book illustrator, this Court cannot bring itself to believe she would have acted without the Plaintiff’s consent. [ 43 ] Moreover, Ms. Fotohy did not lodge a complaint with Facebook nor has she ever asked for the withdrawal of the contents. [ 44 ] In the case in point, the Court cannot conclude to a violation of the copyright, the distribution on Facebook joining an advertising approach consented to by Ms. Fotohy. [ 45 ] It is rather the exchanged comments between Ms. Fardhesari and her Facebook friends that flayed Ms.

Fotohy and dug a little more profoundly the gap between the parties. [ 46 ] Indeed, Ms. Fardhesari, complaining not to have been completely paid for her illustrations, ignited reactions likely to displease Ms. Fotohy. [ 47 ] Yet, as knows Ms. Fotohy, damage to reputation about which she could complain, with or without success, is not the competence of the Division of Small claims Court. Thus, the Court has to refrain from determining this stake and therefore declines competence in this respect. 3) Is the counterclaim of the Defendant well founded? [ 48 ] As for the $350 fee demanded by Ms.

Fardhesari, the proof is contradictory as for the payable amount for her work. [ 49 ] Considering Ms. Fotohy's admission that an additional $200 amount was payable to Ms. Fardhesari and seen the contradictory proof of equal weight on this matter, the Court concludes that Ms. Fardhesari is within her rights to claim only $200. [ 50 ] Besides, the proof does not demonstrate at all that Ms. Fotohy infringed the copyright or the moral right of Ms. Fardhesari by modifying her work or by using it illegally. [ 51 ] Ms.

Fardhesari knew that another illustrator was going to complete certain missing illustrations and agreed to it, as she could not deliver more work for the short remaining deadline. [ 52 ] Furthermore, Ms. Fardhesari insisted so that her name remained in the credits of the book, which was respected. [ 53 ] Besides, the layout of the final work inevitably had to be adapted to take into account the new contents and no reproach can be retained against Ms. Fotohy on this matter. [ 54 ] The demand for violation of copyright of Ms.

Fardhesari is thus wrongfully based. [ 55 ] Also, her demand for damages due to troubles and inconveniences is also ill-founded, both parties having undergone various troubles and inconveniences due to their disagreement and to the vagueness ensuing from their verbal agreement. [ 56 ] Ms. Fardhesari's counterclaim is thus partially well founded, seeing she has the right to claim the balance of $200 of her fees.

[ 57 ] Taking into account the situation experienced by both parties, their mutual dissatisfaction, their good faith and the result of the dispute, the Court will grant the legal costs to none of the two parties. FOR THESE REASONS, THE COURT: REJECTS the claim of Plaintiff; GRANTS in part the counterclaim of Defendant; CONDEMNS Plaintiff to pay $200 to Defendant, plus interest at legal rate plus additional indemnity provided by

article 1619 of the Civil Code of Quebec , from October 27, 2014. THE WHOLE, each party paying its legal costs. __________________________________ The Honourable Nathalie Chalifour, J.C.Q. Date of hearing: October 27, 2016