Koslowski’s Lament

An independent comics creator in the United States who won a copyright-infringement judgment against a Canadian businessman last year says the court order has proven to be worthless because the man who used his art without permission — and continues to do so — simply chooses to ignore it.

Eye on Comics reported last year about the case of 3 Geeks creator Rich Koslowski, who brought a successful court action against Hogan Scott Courrier, the owner and operator of Geeks Galore Computer Center in Marmora, Ont. Koslowski’s lawyer proved that the Geeks Galore business used a 3 Geeks image created by Koslowski on websites, business cards and other business-related material without authorization.

In a Sept. 9, 2009, decision, Judge Michael Kelen wrote in a summary-judgment decision: “The Defendant has offered no explanation or response to Plaintiff’s allegations except the outright denials of any wrongdoing in the statement of defence … Based on the evidence, the Court is satisfied that the Defendant has reproduced the Plaintiff’s copyrighted images, ‘THE3GEEKS,’ and that there is no genuine issue for trial.”

In a court order, Kelen barred Courrier from further copying 3 Geeks images and ordered him to turn over all materials with the infringing image on them to Koslowski or to destroy them. The judge also ordered Courrier to pay damages and court costs.

But none of that has happened, and Koslowski is fuming.

The 3 Geeks image is still on a Tripod website promoting Geeks Galore and on the business’s Facebook page. There’s a photo on Facebook that clearly shows the stolen image on signage in front of the business premises (pictured at right).

“Yep, [I] have the ‘court judgment,’ and it’s apparently worthless. He has from the start and continues to ignore the laws and the summons and the judgments,” Koslowski told Eye on Comics via email.

The 3 Geeks writer/artist said when he first became aware of the unauthorized use of his artwork, he opted to contact Courrier directly rather than pursue legal avenues.

“I called him once at the very beginning of all this. Didn’t get a response, so I emailed him. I was very polite and even gave him the benefit of the doubt in my email. I said that he was using an image of my characters that I myself drew and went as far as to give him an out by saying, ‘Perhaps you, or one of your friends, got this sketch from me at a comic convention and are unaware that you would need permission to use it like you have,'” Koslowski said.

He said that in response, Courrier claimed the image — which is clearly of Koslowski’s characters, rendered in his style — depicted caricatures of himself and two business partners. That claim was easily refutable, Koslowski said, but it took a while to reach that point.

When contacted by Eye on Comics recently, Courrier told a different story, saying the disputed art was associated with the business when he acquired it.

“(The copyright-infringement case) has nothing to do with me. The business was purchased off David Torr intact. He had made the logo back in 2002, I purchased the business in 2007 … I did not make the logo, it was part of the existing company,” he wrote via email. “As for the Tripod site, I did not create it so I have no access to it, the person that does is David Torr, and he is now deceased.”

Eye on Comics wasn’t able to confirm any information of David Torr, his previous ownership of the business or his death by way of web searches.

Courrier also claimed the court order would be overturned because he wasn’t given proper notice of the court action and summary judgment. He also demonstrated a lack of understanding of copyright laws.

“I was never served with the disclosure so the court ruled in my absence. The following forms have been reintroduced into court. You would be best to talk to my lawyer regarding this as I am far too busy to play games with a comic-book creator. We are two completely different businesses, much like Joe’s Garage in the States and Joe’s Coffee Shop in Canada, they both use the same Joe’s Logo,” he wrote, mistakenly representing the notion that entities that share a name can use the same copyright-protected logo if they’re in different countries.

Courrier didn’t acknowledge a message from Eye on Comics noting that the forms to which he referred weren’t attached to his email. He also didn’t share the name of his lawyer.

He did forward an email he received from a friend of his named Joseph Otavnik advising him to stop communicating with Eye on Comics.

“Just ignore this person. You asked for an appeal and the other person didn’t re-start the case and the case was adjourned Sine die (out of time). Just tell this person there is/was no judgment against you nor any finding of fault. Don’t disclose anything else,” Otavnik wrote in an email to Courrier.

Otavnik doesn’t appear to be a lawyer. Web searches of his name and email address indicate he’s an Ontario resident and art collector. There’s no one by that name listed as a licensed lawyer with the Law Society of Ontario, and his description of the appeals process is clearly wrong. When one appeals a decision, the appellant doesn’t wait for “the other person… (to) re-start the case.”

Koslowski said neither he nor his lawyer have been contacted about any appeal.

“From what I’ve been told, because he repeatedly failed to answer the court’s summons and never made the court appearances, his ability to file for an appeal is impossible. That’s what I’ve been told by my attorney, anyway,” the comic-book creator said.

Koslowski is out thousands of dollars and thus far hasn’t been able to get Courrier to comply with the court order. Given the cost and frustration, has he given up?

“I could try to continue getting what’s legally owed to me but that would cost me more money. That’s the way it apparently works — you can win the case in court but then it’s up to you to get any monies owed. And after $7,000 in attorney’s fees, with a lot of empty promises and guarantees, I just simply can’t afford to shell out any more money with the same ‘guarantees,'” he said. “From what I understand, (Courrier) doesn’t really have any ‘assets’ that are worth seizing.”

But no, he hasn’t given up and he doesn’t regret pursuing the matter, he said.

“I haven’t completely given up going after him but I won’t spend any additional money on lawyers — not yet, anyway,” Koslowski said. “I don’t regret going after him either, because if I let him slide, it would have set a precedent I just couldn’t let happen — especially if I want to take my property The 3 Geeks to movie and TV studios. If they see a potential copyright/trademark dilemma, it could really hurt my chances. Now, I’ve set a copyright and trademark precedent for myself. Just wish it didn’t have to cost me so much!”

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