Copyright: Norowzian v Arks Ltd & Anor (No. 2)  EWCA Civ 3014
I wrote a note on Mr Justice Rattee's decision in
After seeing the claimant's film, the defedant made an advertisement for Guiness called "Anticipation":
"it portrayed a man who, having been served by a barman with a pint of Guinness waits for the frothing liquid in his glass to settle, and, while he waits, carries out a series of dancing movements. The film is set to a musical background, with no dialogue. It features two characters, the man dancing and the barman who has 'pulled' his pint for him. In the course of the production of the film the editor has used a similar jump cutting technique to that used by Mr Norowzian in Joy with the similar result that the dancing man appears to indulge in a series of jerky movements that could not be achieved by a dancer in reality."
Joy itself had not been copied so there was no infirngement of film copyright. The question was whether the story behind the film was protected by copyright as a dramatic work and if so whether such dramatic work had been copied. Mr Justice Rattee found against the claimant on both grounds.
Mr Justice Rattee held that a film cannot be a dramatic work per se though it can be a recording of a dramatic work. The Court of Appeal disagreed. In Lord Justice Nourse's words:
"In my judgment a film can be a dramatic work for the purposes of the 1988 Act. The definition of that expression being at large, it must be given its natural and ordinary meaning. We were referred to several dictionary and textbook definitions. My own, substantially a distilled synthesis of those which have gone before, would be this: a dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience. A film will often, though not always, be a work of action and it is capable of being performed before an audience. It can therefore fall within the expression "dramatic work" in section 1(1)(a) and I disagree with the judge's reasons for excluding it." (my italics).
In his lordship's view "Joy" satisfied the above definition. In reaching his conclusion, Lord Justice Nourse analysed s.1 (a) and (b), 3 (1) and (2) and s.5B (1) of the Copyright, Designs and Patents Act 1988 and set out the following propositions:
"The important points to be made about these provisions are the following. First, paragraph (a) of section 1(1) groups literary, dramatic, musical and artistic works together, providing that before copyright can subsist in a work of any of those kinds it must be original. Second, paragraph (b) groups sound recordings, films, broadcasts and cable programmes together, but with no requirement that they should be original. Third, the definitions of literary and musical works in section 3(1), though wide, are comprehensive, whereas the definition of dramatic work is not. While it includes a work of dance or mime, the definition is otherwise at large. Fourth, the effect of section 3(2) is, for example, that copyright cannot subsist in a stage performance for which there is no script. Fifth, the effect of section 5B(1) is that "film" includes a video or any similar means of visual reproduction."
In Lord Justice Noure's view it was perfectly possible for a film to be protected by two separate copyrights: film copyright in the film as such but also by dramatic copyright in the underlying story. He added:
"no mutual exclusivity between paragraphs (a) and (b) is expressed, and the absence of the requirement of originality in paragraph (b) is sufficient ground for none to be implied. Moreover, it is unsafe to base any construction of the material provisions of the 1988 Act on those of the 1956 Act. Indeed, it might be said that Parliament's omission to repeat the exclusion of films from the definition of dramatic work points rather towards their inclusion. But whether that be right or wrong, the material provisions of the 1988 Act must be construed as they stand. Where a film is both a recording of a dramatic work and a dramatic work in itself they do not exclude an overlap. In other cases there will be no overlap. Sometimes a film will simply be a recording of something which is not a dramatic work. At other times it will not be a recording of a dramatic work but a dramatic work in itself."