Is there a right to sue for damages for lost sales of a piece of art by the owner of the work?

Both Fullerton J.A. and Dennistoun J.A. accepted the principle of Stockdale v. Onwhyn that, where there is no right to sell because selling the work would be an offence, then there is no right to damages in compensation for lost sales. Fullerton J.A. extended the converse of this principle in holding that the right to sell gives the right to an injunction.

Dennistoun J.A. found the basis of the Stockdale principle to be in the inability of the plaintiff to prove damages. Although not expressly stated, his choice of stating this view immediately following the note that our Copyright Act does not deny copyright to obscenity suggests the interpretation that Stockdale did not deny copyright, only that the damages claimed could not be proved at law. This is supported by his final conclusion as to severability. The reasoning that copyright is not denied per se permits his suggestion that, even if damages could not be claimed because they could not be proved, an injunction might be available unless the work was “a fraud upon the public”. His view appears to reject Glyn v. Weston Feature Film Co. American law