Eye on Comics

Comics criticism and commentary from Don MacPherson

3 Geeks v. Geeks Galore

Posted by Don MacPherson on October 7th, 2009

3 Geeks, copyright Rich KoslowskiWhen it comes to stories about comic-book copyright infringement, one usually imagines Marvel Entertainment or DC Comics cracking down on unauthorized use of iconic super-hero characters. But in a Toronto court recently, an independent comics creator and self-publisher took on another small businessman. The 3 Geeks creator Rich Koslowski has won a summary-judgment motion in Canadian federal court, upholding his 3 Geeks copyright. The case arises from an Ontario computer-consultation business and its use of a 3 Geeks image, created by Koslowski, promotional materials.

Koslowski filed a legal action against Hogan Scott Courrier, the owner and operator of Geeks Galore Computer Center in Marmora, Ont., in September 2008, alleging that Courrier “displayed the Infringing Image as depicted at para. 9 of the Plaintiff’s affidavit on the Defendant’s internet homepage, other websites, invoices, business cards, and shirts worn by sales staff” at least since 2006, federal court Judge Michael Kelen wrote in his Sept. 9 decision on the motion.

Kelen ruled that while Koslowski failed to produce a copy of certification of copyright with the Canadian Intellectual Property Office, a provision of the Canada’s Copyright Act nevertheless indicated he was entitled to the presumption of copyright ownership.

“The Defendant has not adduced any evidence to the contrary. I therefore find that Richard Koslowski is the owner of copyright in ‘THE3GEEKS’ characters,” the judge said.

“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.”

Those findings were enough for Kelen to grant Koslowski’s motion for summary judgment, eliminating the need for full discovery and a trial.

Koslowski - image from his websiteThe judge barred Courrier from further copying 3 Geeks art and ordered him to turn over all materials featuring the infringing image to Koslowski or to destroy such materials.

Kelen also ordered Courrier to pay damages for copyright infringement, but he stopped short of setting an actual number. Instead, he ordered Courrier to provide Koslowski with copies of all invoices, financial statements and other records about his business revenues by Oct. 9. From that information, Koslowski will determine a damages claim, and he’s to submit that to a judicial officer for assessment.

The judge also ordered Courrier to pay $3,642 in court costs.

Though Courrier took the offending image down from his website after Koslowski filed his lawsuit, it remained on another Tripod site while the lawsuit was underway. Furthermore, the 3 Geeks image pictured at the top of this article is still on that Tripod site as of this writing.

Koslowski couldn’t be reached for comment.

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