The Current

Marineland sues college student for $1M over unreleased orca film

A film that includes footage of Canada's only remaining captive orca, Kiska, has triggered a $1 million lawsuit by Ontario's Marineland. The 19-year-old filmmaker says he's surprised he's being sued because his project is not aimed at defaming the park.
Kiska, a killer whale at Marineland in Niagara Falls, Ont., is featured in a video by 19-year-old Zach Affolter who hopes that Kiska will one day live in a seaside sanctuary. (CBC)

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Marineland has launched a lawsuit against 19-year-old college student Zach Affolter who made a short film about a captive whale.

Affolter is a marine biology major at Humboldt State University in Arcata, California, and his unreleased film, Black Water, includes footage of Marineland's sole orca, a female named Kiska.

He explains to The Current's Friday host Kelly Crowe that his film is a short, fictional narrative — not a documentary.

Although the script is based on his own personal struggles with depression, he does admit that he is an activist.

"[The film] does dive into the ethical question of keeping cetaceans, dolphins and other whales in captivity but it also illuminates our emotions and how — as a title depicts — they can pull each of us down and that in the end there's a meaning to it all."

Marineland is seeking $1 million in damages against Affolter. It claims use of the footage in his film breaches its intellectual property rights. Affolter denies these allegations and tells The Current his footage of Kiska comes from YouTube and that he did not "send anyone to Marineland" to document the orca.

Marineland 'taking basic reasonable steps' 

The Current contacted Marineland for an interview. It declined but provided the following statement: 

"The whole issue would have been avoided if Mr. Affolter had simply acted reasonably and provided copies of the Marineland images he hopes to use and sought permission to use them which is the normal legal and acceptable way to do these things. Instead, he has to date refused to provide any information and does not even, at this point, accept that the courts of Ontario should be permitted to consider the issue and decide fairly. So Marineland is taking basic reasonable steps to have the court protect its interests as anyone else would."

This recent lawsuit isn't the first one Marineland has launched against defendants with connections to the animal rights movement.

In 2013, the park launched litigation against a former walrus trainer.  It's also suing former trainer Christine Santos for talking to the Toronto Star about the condition of Kiska. Marineland says the claims are false and the park says its facilities have been thoroughly inspected and vindicated. 

'Simply ... a passion project'

Affolter's plan to release the film is on hold pending a court ruling in this case. But he says if he will release Black Water, it will be available online for free. He tells Kelly Crowe that it was never his intention at any point to profit from his film.

"It was just simply, you know, a passion project. So I could kind of … tell the story." 

This segment was produced by The Current's Lara O'Brien and Marc Apollonio.