In a world with no shortage of inspiring literary works,
authors often ask where the line is drawn between being
“inspired by” another person’s work and copyright
infringement. The answer is complex and requires an understanding
of how copyright works.
Generally speaking, the federal Copyright Act provides
protection to authors that is limited to the author’s lifetime
plus an additional 50 years following the author’s death. After
that, the work becomes part of the public domain, allowing it to be
If a work is not in the public domain, determining whether
copyright has been infringed can be complicated. Subject to certain
exceptions under the Copyright Act, if a person
republishes a copyrighted work, that republication would be an
infringement. However, when authors are simply inspired by
another’s work, that is an entirely different situation.
What does copyright protect?
The most important aspect for creators to understand is that
copyright protections are limited to the expression of
ideas and not the ideas themselves. As such, this leaves room for
authors to be inspired by the ideas of others and use them in
creating their own works.
For example, an idea for a story is not protected by
copyright, but if an author takes that idea and expresses it in a
written work, the written work embodying the idea is copyright
Copyright protection extends automatically to the expression of
ideas in a material form. “Material” expressions may
include literary works, artwork, songs/poetry, news articles,
architecture and design, computer code, performances, radio
broadcasts and numerous other forms of expression. Copyright
protection is automatic in that an author of a work is not required
to take any additional steps to secure its protection. For example,
from the moment an author writes down an original idea on a piece
of paper, the writing is copyright protected.
Despite copyright protection applying to works automatically,
authors receive additional protections by registering their works.
Should there ever be a dispute regarding a work, having a
registered copyright can be a powerful tool to enforce an
For those interested in learning more about the basics of
copyright protection, we will be writing a future blog post on the
Does my work infringe?
Unfortunately, there is no black-and-white answer to this
question. Courts must first determine whether a “substantial
part” of a copyrighted work has been taken.
What is a “substantial part”?
In Robinson v Films Cinar inc, 2013
SCC 73, the Supreme Court of Canada provided five guiding
principles to determine whether a “substantial part” of a
copyrighted work has been reproduced. This is a multifaceted
analysis, with no single factor necessarily determining copyright
1) THE QUALITY AND QUANTITY OF THE MATERIAL TAKEN
Courts have emphasized that infringement is qualitative and not
quantitative. For example, single images or small amounts of text
may infringe copyright if the copied feature represents a
“substantial part” of the skill and judgment used to
create the underlying work.
Copyright may also be infringed by “colourable
imitations” — elements that are altered but recognizable
against the original. When the differences within a new work are
too great for the new work to be considered an imitation, courts
have held that there is no infringement.
As such, when taking inspiration from another person’s
copyrighted work, it is important to take the utmost care in
distinguishing your characters, geography and narrative elements
from the original work.
2) THE ADVERSE IMPACT UPON THE COPYRIGHT HOLDER
Courts will consider evidence of an alleged infringement
negatively impacting the copyright holder. Such evidence must show
that the alleged infringement diminished the value of the
3) WHETHER THE MATERIAL TAKEN IS THE PROPER SUBJECT MATTER OF
Whether an allegedly infringed work is subject to copyright is
fundamental to any copyright infringement dispute. For a work to
have copyright protection, it must be “original.” In
CCH Canadian Ltd v Law Society of
Upper Canada, 2004 SCC 13, the Supreme Court of Canada
held that “original” works must be the product of skill
and judgment, and more than a purely mechanical exercise.
4) THE PURPOSE OF THE ALLEGED INFRINGEMENT, AND WHETHER IT WAS
MADE TO SAVE TIME AND EFFORT
The main purpose of the alleged infringement must also be
determined. When courts find that the purpose of an alleged
infringement was to save time and effort, they will weigh this in
favour of infringement.
5) WHETHER THE MATERIAL IS USED IN THE SAME OR SIMILAR FASHION
AS THE PLAINTIFF’S
This factor concerns how the alleged infringer is using the
copyrighted work — for example, whether materials from a book
were reproduced in another book. This assessment is primarily
concerned with reproduction that would stifle the incentive for
creators to create, such as reducing the marketability of a
Non-literal infringement and “colourable
The form of a work is only a single factor in determining
whether a “substantial part” has been taken. The Supreme
Court of Canada decision in Cinar v Robinson is a great
example of this.
In this case, the plaintiff author had met with the corporate
defendant and its directors to pitch an idea for a children’s
television series. The defendant originally put off the
plaintiff’s pitch due to a lack of interest from investors, but
later released a television series that was highly similar to the
series proposed by the plaintiff.
Due to the different forms of the two works — i.e. a
written work vs a motion picture — the defendant had not
engaged in literal copying of the plaintiff’s work. However,
the Supreme Court held that there were enough similarities in the
defendant’s television series to find that it was a
“colourable imitation” of the plaintiff’s work, and
thus infringed upon it. Specifically, the Court found that the
defendant had copied visual elements and the particular combination
of characters with distinct personality traits living together on a
However, just because works contain similar elements does not
automatically mean infringement. In Evans v Discovery Communications
LLC, 2018 FC 1153, an author alleged copyright
infringement of his science fiction novel, which featured
futuristic technologies and their effects on humankind. The
defendant published a TV series featuring futuristic technologies
and the ethical implications they gave rise to.
While the plaintiff alleged “non-literal”
infringement, he claimed that the show and his novel were
“semantically similar.” In a summary judgment, the Court
dismissed the plaintiff’s claims for failing to point to
specific instances of copying and instead being directed at ideas,
which cannot be the subject of copyright. Moreover, futuristic
technologies such as those described in the plaintiff’s work
were found to be a common theme in science fiction. To make a
finding of copyright infringement, the Court held that similarity
between works must be more specific than what was alleged by the
Before publishing a work, familiarize yourself with copyright
law — especially when you are publishing a work inspired by
the work of others. Whether a work is “inspired by” or
infringing a copyrighted work is difficult to determine. If taking
inspiration from another’s work, it is important to distinguish
the inspired elements as much as possible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.