Maier Estate v. Bulger, 2024 FC 183

Justice Furlanetto - 2024-02-05

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This is a motion for reply evidence relating to an action for copyright infringement in respect of photographs and other alleged works created by the late Vivian Maier. ... The Plaintiff asserts that the proposed reply should be permitted as it seeks to: 1) clear up mischaracterizations or misunderstandings of his evidence that are relied upon by Ms. Juhasz; and 2) respond to new and unanticipated evidence from Ms. Juhasz on the market for photographic negatives. ... As Mr. Gaillard was tasked with conducting an appraisal, it is my view that any explanation as to why that appraisal was not done according to the USPAP should have been made in his First Report. The proposed paragraphs 5 to 7 are not proper reply. ... While I agree that paragraphs 8, 9 (except for the words “disagree with Ms. Juhasz’ suggestion and”), 10 and 11 are properly responsive to clear up the perceived mischaracterization; in my view, the noted words from paragraph 9 and paragraph 12 should not be permitted ... While the Defendants argue that the evidence from Mr. Gaillard is improper case splitting and is not responsive, I do not agree. The evidence proposed directly responds to the assertion by Ms. Juhasz that the examples can act as comparable market data on which to base an appraisal and provide a defined value. ... As success was divided, there shall be no order as to costs.

Decision relates to:



Canadian Intellectual Property