The CN Tower is a giant radio antenna and tourist attraction on Toronto's lakeshore; it's an iconic part of the city's skyline, and has been since it was built at taxpayer expense; today, it's owned by a Crown Corporation that insists that any reproduction of the Tower is a trademark violation.
James Bow is a Canadian fantasy writer whose small-press fantasy novel The Night Girl features a cover-art collage that includes a Creative Commons-licensed image of the CN Tower. Bow was getting ready for his book launch when the CN Tower's management company wrote to him to insist that he not publish the book with the cover, on the grounds that people who encountered his novel might mistakenly believe that it was commercially affiliated with the CN Tower.
The Canadian Parliament has actually taken up the question of whether the owners of buildings can control the reproduction of their likenesses: Section 32.2(1) of the Copyright Act states that "It is not an infringement of copyright… for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work…an architectural work, provided the copy is not in the nature of an architectural drawing or plan."
In other words, you can't stop people from reproducing the likeness of your building.
The CN Tower's management clearly knew about this, so their threat to Bow invoked trademark law, advancing the bizarre theory that any commercial reproduction of the Tower's likeness is intrinsically deceptive, since anyone who sees such a reproduction would automatically assume that the CN Tower endorsed the product that bore the reproduction (that is, people who encountered Bow's book would immediately leap to the conclusion that the CN Tower had launched a line of fantasy novels).
This is a remarkably stupid theory, but it's also a remarkably dangerous one. It's telling that the CN Tower embarked on its trademark trolling career by attacking a small press author who was unlikely to have the resources to defend himself. As we've seen with other trolling efforts, targeting a string of small-time victims can allow a troll to amass a trophy-wall of companies that seem to have acknowledged the validity of their claims, and these trophies can be used to convince a succession of ever-larger targets that they, too, should pay.
If the CN Tower succeeds in this gambit, you can be sure they won't be the only ones who try it: their example could lead every owner of every notable Canadian building to follow suit, so that a picture of the Toronto skyline taken from a harbour ferry could require fifty separate licenses before it could be published, and the same would be true for every Canadian city's skyline.
Worse, the mere existence of such a claim could chill artists, newsgatherers, and other people who have cause to reproduce the likeness of their city's buildings, because you'd never know if your painting, blog post, or photograph would attract a legal threat down the line.
Bow was lucky to find representation from Ren Bucholz, a former EFF activist who now practices law in Toronto. Bucholz has sent a letter on Bow's behalf to the CN Tower's management making it clear that their demand is flaming garbage. Now the ball is in the Tower's court.
Whether or not the Tower presses their claim against Bow, they deserve to be humiliated on the national stage for this breathtaking attempt at legal bullying, in which they claimed to own a symbol that has become synonymous with Toronto itself — an attempt, in other words, to steal the likeness of the city from its millions of residents.
On Oct. 2, Bow’s lawyer Ren Bucholz wrote to Leavey, asking that the matter be dropped.
“The purpose of trademark law is to prevent confusion in the marketplace for specific goods and services, and to stop bad actors from ’passing off’ counterfeit goods as the genuine article,” Bucholz wrote. “We understand that CLCL is the Crown corporation that owns the CN Tower, and that it is charged with stewarding and monetizing real estate assets formerly held by the federal government. It seems unlikely that CLCL is active in the business of publishing novels, let alone fantasy novels featuring a strong female protagonist who helps trolls and goblins succeed in the human world through her work at an employment agency.”
CN Tower's owner says book-cover art violates trademark [David Nickle/Torstar]
