Marineland files lawsuit against teen filmmaker

Thursday, May 12, 2016 4:16:32 EDT PM

Marineland has launched a $1 million lawsuit against the producer of a film it claims uses unauthorized images taken on park property. Black Water was made a 19-year-old university student in California. PHOTO: Mike DiBattista / Niagara Falls Review

Marineland is suing a 19-year-old California filmmaker for $1 million for a movie it alleges uses its intellectual property.

The suit, filed May 10 at the Superior Court of Justice in St. Catharines, claims the upcoming film Black Water, produced and directed by Humboldt State University student Zach Affolter, uses video and images “illegally taken” inside the park by someone hired as a seasonal employee.

The film, according to its Facebook page, “tells the sad story of Kiska, a captive orca at Marineland, Ontario. She struggles to overcome her pain and despair as they rip her apart.”

Through his company Rising Sun Productions, Affolter has released a series of short films on YouTube about other killer whales in captivity like SeaWorld’s Tilikum and the Miami Seaquarium’s Lolita. The film’s Facebook Page says it will be released online May 20. Two teaser trailers released last year contained voice overs accompanying images of Kiska, with statements like “I wish you could understand this cold, empty feeling that continues to destroy me” and “I don’t even have the spirit to kill myself. It feels like I am drowning, in black water.”

Marineland’s statement of claim said the park has been cleared of all allegations of animal abuse, and Affolter produced the film “for the purpose of causing damage to Marineland for commercial gain.”

According to the Statement of Claim, the images provided to Affolte by an unknown defendant breach the park’s 2015 Seasonal Team Member Employment Agreement, which forbids “any photograph, prints or other digital media” on park property without written consent.

Likewise, under Terms & Conditions on its website, Marineland states photographs and videos taken at the park “may not be used for commercial purpose.”

Earlier this year, hidden-camera footage shot inside the park by a summer employee last year sparked an angry response from Marineland. The footage, focussing mainly on the park’s beluga whales, was used by the L.A.-based non-profit group Last Chance for Animals to highlight the “insufficient care” of Marineland’s 46 beluga whales.

Marineland called the video a “hate-filled rant,” and said the group’s allegations are “completely and knowingly false.”

Marineland believes Black Water, with a title alluding to the hugely successful documentary Blackfish, will “secure income for animal activist organizations and, as such, is for a commercial purpose.”

When reached Thursday, Affolter said Marineland is never directly mentioned in the film, and the faces of all visitors and employees have been blurred out. He rejects the park’s claim it is a commercial venture.

“Black Water is meant as an educational, non-commercial film that dives into the moral question behind keeping cetaceans (dolphins and other whales) in captivity,” he said via e-mail. “The film is a narrative set in Kiska’s perspective that explores what these sentient, social creatures might feel when placed in a captive environment.”

The film will no longer be released May 20, but Affolter still intends to release it “at the right time.”

He intends to defend himself against the lawsuit, though he can’t “afford legal protection.”

“It’s sad that we live in a world where people are bullied and pushed around just for speaking their mind.”

It marks the ninth lawsuit Marineland has launched in the past four years.

Niagara Falls animal activist Mike Garrett, who is being sued by the park for $1.5 million, calls it “disgusting” the park would use Ontario’s court system to sue a teenaged marine biology student bringing attention to Kiska, Canada’s only captive killer whale.

“What’s next, will they sue an eight-year-old girl who writes a poem about captive belugas?,” he says. “I think this is part of a wider legal strategy Marineland is attempting to employ where they are trying to keep any video or photos taken inside the park under their copyright control, and prevent the public from seeing anything that could damage their brand.”

In 2013, the park sued Garrett for $1 million in general damages and $500,000 in punitive damages after a series of protests. It is still unresolved.

When contacted Thursday, Marineland issued a statement saying Kiska is “healthy and extremely well cared for,” and was recently inspected by independent investigators.

While the park “encourages our guests to take as many personal photos as they wish,” it resents its intellectual property being used for a “propaganda film.”

“Like every private person or business in Canada, Marineland objects to the unlicensed and illegal theft of its images to make money.

“Marineland does not object to the fair expression of opinion by anyone and fully supports free speech. Marineland does not support illegal and/or defamatory conduct.”

Marineland opens for its 55th season on May 21.