21 September 2008

Copyright: Case Note - Christoffer v Poseidon Film Distributors Ltd.

This note that I first wrote in 1999 on the decision of Park J in Christoffer v Poseidon Film Distributors Ltd [1999] EWHC 262 (Ch), [2000] ECDR 487 discusses another interesting old case that I have read again while updating the IP/IT Update website.   Three intellectual property issues arose in this case in which 5 separate actions came on for trial before Park J:

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whether copyright subsists in a film script which was based substantially on Book IX of Homer's Odyssey;

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if it did, whether it was infringed by making an animated film from the script; and

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whether the distribution of that film without attributing authorship to the scriptwriters infringed the writers' moral rights.

There were many other issues but they were concerned with the fracts rather than the law.

The Facts

The case arose from a dispute between two Greek Cypriots, Andrew Christoffer ("Mr Christoffer"), a freelance scriptwriter, and Frixos Constantine ("Mr Constantine"), a director and controlling shareholder of Poseidon Film Distributors Ltd. ("Poseidon"). Mr. Christoffer introduced himself to Mr Constantine either in 1987 or 1991. Mr Constantine took to Mr. Christoffer and offered him a chance to show what he could do. Some time before the 20 Feb 1992 Mr Christoffer wrote a script for a short animated television film of the Cyclops story from the Odyssey which came into Poseidon's possession. He did not do much more work on that script after meeting Mr. Constantine but worked on two other projects for Poseidon between late 1992 or early 1993 and March 1995. One project was called Global Bears Rescue ("GBR"). The other was a rewrite of a film script called "The Diploma". Mr Christoffer never became an employee of Poseidon but worked freelance from Poseidon's offices receiving various fees for his services. Mr. Christoffer and Mr. Constantine quarrelled in March 1995 as a result of which Mr Christoffer cleared his desk and walked out of Poesidon's offices.

Some time before the quarrel Mr Constantine proposed an Odyssey series to BBC Wales and Channel 4. He sent Mr Christoffer's script to the BBC to indicate what the episodes would be like. On 17 Feb 1994 the BBC commissioned Poseidon to produce a 15-minute pilot and agreed to make various payments, including £5,000 towards research and script development.

Mr Christoffer knew very little about that project but he redrafted his script early in 1994. Poseidon commissioned an artist called Simon Bradfield ("Mr. Bradfield") to draw storyboards from one of Mr Christoffers scripts. A company called Vilanima drew a new set of storyboards based on Mr Bradfield's while the script was rewritten by a writer called Jack Pitman ("Mr. Pitman"). Mr. Pitman testified that Mr Constantine gave him a script that had been written by another writer and was asked to rework it, in particular by livening up the dialogue. His instructions were: Dont play with the plot. Just do something with the dialogue. Vilanima made an animated film from its screenplays and Mr. Pitman's script.

Originality

A fundamental condition of the subsistence of copyright in a literary, dramatic, musical or artistic work is originality. Originality means the application of independent skill and labour and can include reworking existing material. Nothing illustrates the point more appositely in view of the subject matter of the case than the following quotation from Kipling chosen by Sir Hugh Laddie, Mr. Peter Prescott and Ms. Mary Vitoria (see pages 46 and 80 of volume 1 of the second edition of their book "The Modern Law of Copyright and Design" (Butterworths, London):

"When 'Omer smote 'is bloomin' lyre, '
E'd 'eard men sing by land an' sea;
An' what 'e thought 'e might require,
'E went an' took - the same as me.

They knew 'e stole: 'e knew they knowed.
They didn't tell, nor make a fuss,
But winked at 'Omer down the road,
An' 'e winked back - the same as us."

Sadly, Park J passed up the opportunity to comment on or even refer to this quotation. He observed:

"...... the fact that the original story of the Cyclops was written by Homer (whoever he may have been) and was presumably an original work when it was written ...."

did not prevent a reworking of tht work by a modern writer from being itself an original work within the meaning of the Copyright, Designs and Patents Act 1988. His lordship explained that original in this context does not imply an examination of a works literary quality but rather whether it originated from the person who claims to be the author:

"Mr Christoffer's script originated from him, and is not prevented from having done so by the fact that there is another sense in which it can be said to have originated from Homer."

The judge expressed no view on whether the originality requirement would have been met had Mr Christoffer done nothing more than write a summary of the story but found that Mr Christoffer had done more than that. The core of his script was the same as Book IX of the Odyssey, but there were many variations of detail. In the judge's view, setting out someone else's narrative in the form of a script suitable for filming manifestly involved original work in that it created a work which did not exist before.

Infringement
An observation with which Sir Hugh and his co-authors would hardly disagree in view of their section headed "The idea/expression fallacy" (page 61 of volume 1) was that:

"Although there is no copyright in an idea, but rather the copyright is confined to the expression of the idea, it does not follow that, merely because the words in the final script (Mr Pitman's script) were different from Mr Christoffer's words, therefore there can have been no copying. In the context of a literary work the concept of copying embraces taking the content of the work, or of a substantial part of it, and reproducing it, whether or not the alleged infringer reproduces the content by using the original authors words or by using his own words."

Relying on Ravenscroft v Herbert [1980] RPC 193 and Harman Pictures NV v Osborne[1967] 1 WLR 723, the judge found that Poseidon had infringed Mr. Christoffer's copyright in his script by causing an animated film to be made from it. The infringing acts included direct and indirect copying and adaptation of Mr Christoffers script both through the storyboards and the script. In the case of the storyboards, the chain ran from Mr Christoffer's script to Mr Bradfield's storyboards, from Mr. Bradfield's storyboards to Vilanima's, and from Vilanima's storyboards to the animated pictures in the film. In the case of the script the chain ran from Mr Christoffer's script to Mr Pitman's script and then on to the finished film.

Moral Rights
The final intellectual property issue was whether Poseidon had infringed the moral rights of Mr.Christoffer and another writer to be identified as authors of several GBR scripts. S.77 of the 
1988 Act entitles the author of a copyright work to be identified as such when the work is broadcast provided that he asserts his right in accordance with s.78. S.78(2) requires an author's right of identification to be asserted either in an assignment of the copyright or by some other written instrument signed by the author. The judge observed that one of these alternatives must be satisfied whether the right is asserted generally or whether in relation to any specified act or description of acts. He found that Mr Christoffer and his co-author had not asserted their rights in either of those ways. Therefore, the action against Poseidon for infringement of their moral rights failed.

Comment

A detail of this case that is not entirely clear is precisely what exactly the defendants took. There can be no infringement if the material was out of copyright, such as the transcript of the trial of Oscar Wild in Warwick Film Productions Ltd. v Eisinger [1969] 1 Ch 508, as that would not constitute a substantial part of the copyright work. Park J said that the core of Mr. Christoffer's script was the same as Homer but there were many variations of detail but he also found that "the detailed text" of Mr. Pitman's scrip was "not the same as the detailed text for any of the versions of the script which Mr. Christoffer produced." Mr. Pitman was instructed in terms not to alter the plot but simply to alter the dialogue.

See also "What is meant by Originality" 19 Sep 2008 and "What is meant by Primary Infirngement" 21 Sep 2008.

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