Calgary tombstone company alleges city copied Chinese designs
Allegations of copyright infringement for the purpose of luring Chinese customers
The City of Calgary is in a legal battle over the designs of several tombstones advertised in a cemetery pamphlet, CBC News has learned.
The dispute dates back several years and includes allegations of copyright infringement for the purpose of luring Chinese customers.
Evergreen Memorials, a local family-owned business that specializes in etching headstones, is suing the city and its supplier for damages.
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Dale Woo, who co-owns the monument company on Edmonton Trail with his brother, are the plaintiffs.
"I believe that competition is fantastic, as long as everyone plays by the same rules," he said.
"What gets me a bit upset is when the competitors start using photos of our headstones with graphic designs on the brochures. And they're telling their customers they produce it — a little bit against the law, I think."
Calgary Cemeteries operated by city
Woo added he doesn't think the city should be involved in the business of selling headstones, competing with small enterprises like his with the backing of tax subsidies.
Calgary Cemeteries — a municipal department — operates five cemeteries and an indoor mausoleum. It also offers a variety of services and products, including graveyard plots, crypts, wall memorials and tombstones.
Those products are advertised in various pamphlets. One pamphlet in particular has been drawing the ire of the Woo brothers since 2012.
The so-called "Asian Monuments" collection features 11 pictures of tombstones, along with a contact number for the city. Woo said two of the designs are photographs of products from his company and were reproduced without his consent.
The pamphlet is on display at the entrance of the historic Chinese Cemetery off Erlton Street and Macleod Trail S.W.
Both designs feature etchings of Taoist-style temples, with cascading arched roofs, mirroring images of dragons and statues of stone lions on either ends. The Woo brothers claim they came up with those designs, and it was not easy.
"For example, one of our dragon designs — for us to just draw it from scratch, it takes us one week," said Woo. "That's full-time, eight hours a day for five days a week. That's how long it takes to do one drawing. Any of the graphics we do is so time consuming."
Possible loss of business
A single headstone can cost anywhere from several hundred dollars to tens of thousands of dollars. Woo said the misleading information in the city brochure could lead to loss of business for Evergreen.
"Most customers keep these brochures even though they don't buy these headstones right away," said Woo. "They keep [the brochure] for years because it's attached to their plots and legal documents. Because they have these brochures, they assume that if they go back to the City of Calgary even after three to five or even 10 years, they can produce each of these individual images that they request in the future."
He added, "we don't always get the business right away, but if they have our images, we don't get their business in the future."
The City of Calgary is not commenting on the case. It has denied liability in the statement of defence and has instead made a third party claim against Sunset Memorial and Stone, a supplier for the city — and the company behind the city's "Asian Monuments" pamphlet.
"A third party claim is what you do when you want to bring another party into the lawsuit, said Kate Andrews, a litigator with Parlee McLaws in Calgary who is not involved in the lawsuit.
"So in a standard basic lawsuit, we start with a plaintiff and a defendant. The plaintiff sues the defendant and the defendant says, 'Whoa, that doesn't have anything to do with me! That was Bob.' So they file something that's fairly similar to a statement of claim against Bob in which they say I've been sued for this for the reasons set out here but it's really your responsibility."
Sunset responds
The "Bob" in this lawsuit is Gordon Leaf, owner of Sunset. He said the designs are not original enough to fall under any copyright protection.
Leaf issued the following statement to CBC.
"Even if Evergreen was somehow able to prove copyright infringement, Sunset has only reproduced some designs of headstones in a sales brochure, but has never sold any actual headstones portraying the design(s) in question. Accordingly, Evergreen has not lost any sales of headstones to Asian customers, and thus has not suffered any damages whatsoever."
Kate Andrews from Parlee McLaws said this case is not much different from many of the more mainstream disputes over intellectual property, whether it's over the Harry Potter books or a Robin Thicke song.
"Pretty much every grave marker will use the phrase 'Rest in Peace' or standard religious iconography like crosses and stars of David," said Andrews.
"Nobody claims that those are restricted to a single company. What the plaintiff is claiming in this case is that they expended time and energy and intellectual capital to create something that was special and new and distinct enough from what's already in the market that anybody else that's doing something similar is copying them."
With the current backlog of legal cases in Alberta, Andrews anticipates the tombstone dispute could take many years to unfold.