Copyright

Case Note: Norowzian v Arks Ltd and others

Jane Lambert
Oct 1998
This case first appeared on the Lancaster Buildings website

One of the ways in which a young filmmaker can get started is to compile extracts of his or her work onto a film or video called a "show-reel" for distribution to potential employers. Obviously considerable time and effort go into making show-reels and they are clearly creative works. The question which this case raises is how far (if at all) they are  protected by copyright.

The Facts
In 1992 the plaintiff directed a short film called "Joy" and included it in his show-reel. It made a striking impression on all who saw it. He produced the work on an extremely low budget shooting it on the flat rooftop of a building in London. His set was merely a canvas sheet draped over an existing structure on the roof. The film had no dialogue and the cast consisted of one casually dressed man who performed a strange, rather quirky dance. The striking feature of the film resulted from the filming and editing techniques. Filming was carried out with a camera in a fixed or "locked-off" position. Editing made extensive use of a process called "jump cutting" where the editor excises pieces of the original film with the result that the actor appears to perform movements that are impossible to do in real life. An example mentioned by Rattee J was a sequence where the actor’s face suddenly appears close to the camera while he is dancing some distance away resulting in a surreal effect. According to the plaintiff, the actor's movements to the musical background told a story of emotional development from diffidence to exuberance. Rattee J described the film as "a striking example of a talented film director's art." The plaintiff claimed film and dramatic copyright in respect of "Joy".

One of the recipients of the plaintiff’s show-reel was the first defendant, an Irish advertising company which acted for Guinness (Ireland) Limited ("Guinness") in Ireland. The first defendant wanted to produce a commercial for Guinness based on the theme of a Guinness drinker waiting for his pint to settle and showing what he might do while he was waiting. In devising this theme the first defendant was influenced by a scene in the film of Roddy Doyle's novel, "The Snapper", where a man, elated by the birth of his first grandchild, rushes into a pub to celebrate with a pint of Guinness. Despite the urgency of his celebrations, he feels constrained to wait to drink his Guinness until the liquid has settled after being drawn from the pump. While thinking about how to develop this theme, the first defendant’s artistic director remembered "Joy" and decided to show it to his company’s client. He and his team put together a script and storyboard for the proposed advertisement and presented it to Guinness with a copy of "Joy". Guinness liked the idea and the first defendant invited the plaintiff to direct the commercial. The plaintiff refused because he took the view that the defendants wanted a remake of "Joy" "with a beer glass superimposed to represent their client's product." He was unwilling to direct such a film because it would have meant going back over his own work and would have involved no creativity on his part. Because he regarded the storyboard sent to him by the first defendant as representing a copy of his film, he warned the first defendant to stay well away from "Joy".

Having been rebuffed by the plaintiff, the first defendant approached another director. It showed him a copy of "Joy", and told him to produce a commercial "with an atmosphere broadly similar to that portrayed in "Joy" suggesting that he might use various film techniques, including jump cutting. It asked the director to create a new storyboard for the proposed film because the first defendant considered the original one to be too close to "Joy". The director agreed to do this because "he wanted to do his own thing." The defendant or its director showed "Joy" to an actor on more than one occasion during the time he was engaged in preparing for the new film and told him "to imitate, emulate and expand upon ‘Joy’". The result was a film called "Anticipation" which portrayed a man who also carried out a series of dancing movements as he waited for his pint to settle. It was also set to a musical background without dialogue though it featured two characters, namely the dancer and the barman who pulled his pint. The editor used a similar jump cutting technique with the result that the dancer appeared to indulge in jerky movements that could not be achieved in reality. Despite its overall similarity, no part of "Joy" footage was reproduced. The film was shot in April 1994 and broadcast in Ireland in May 1994.

The Issues
The plaintiff alleged that "Anticipation" infringed his film and dramatic copyrights. He also complained of passing off. On the 17 Dec 1997 Mr. Steinfeld, sitting as a deputy judge of the High Court, struck out those passages of the statement of claim alleging infringement of film copyright, on the ground that such copyright protects only the fixation and not the story-book. He based his judgment on two Australian decisions, Telemak Teleproducts Australia Pty. Ltd. v Bond International Pty Ltd. (1985) 5 IPR 203 and CBS Records Australia Ltd. v Telemak Teleproducts (Aust) Pty Ltd. (1987) 9 IPR 440. The passing-off claim was abandoned so the issues that came on for trial before Rattee J were whether

	"Joy" constituted or comprised a "dramatic work" for the purposes of s. 3 (1) of the Copyright, Designs and Patents Act 1988 ("the CDPA") and
	"Anticipation" was, or included, a copy of a substantial part of "Joy".

Rattee J's Judgment
At trial the plaintiff failed on both. As to the first issue, it was common ground that dramatic copyright subsisted in a film only if it records a work of dance or mime. His lordship observed that, had the finished film recorded a dance routine performed by an actor. it might well have represented such a recording, and would therefore have been a dramatic work within the meaning of s. 3 of the CDPA. A large, probably the major, part of the effect of the film is the "quirky" or surreal effect produced by the editing techniques and, in particular, jump cutting. The result was something very different from a recording on film of the dance or mime routine performed by an actor. In his lordship’s view, a film per se could not be a dramatic work within the meaning of the CDPA , though it could be a recording. A dramatic work had to be something that existed independently of a film, even if the film was the medium in which the work was recorded. He concluded that "Joy", unlike some films, was not a recording of a dramatic work, because, as a result of the editing it recorded nothing that was, or could have been, performed physically. Although the finding on the first issue disposed of the action, Rattee J found as a fact that "Anticipation" did not reproduce the whole or a substantial part of "Joy".

The Appeal
There was an appeal but, while the Court of Appeal found that a "film" could be a "dramatic work", the film "Anticipation" did not on the facts reproduce a substantial part of "Joy".
 

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