Copyright: Norowzian v Arks Ltd & Anor (No. 2) [1999] EWCA Civ 3014

I wrote a note on Mr Justice Rattee's decision in Norowzian v Arks Ltd and Others [1998] EWHC 315 (Ch) (17 July 1998) some 10 years ago and updated it slightly after the appeal was dismissed ([1999] EWCA Civ 3014).   I had another look at the case while updating the IP/IT Update website and found that Lord Justice Nourse's decision contained some interesting dicta on the nature of copyright, originality and the interface between film and dramatic copyrights.

The Issue

The question was whether a young director's show reel, "Joy", had been copied. The claimant had made a film which Mr Justice Rattee described as a very short film with no dialogue:

 it was shot by Mr Norowzian on the flat rooftop of a building in London. The set was merely a canvas sheet draped over an existing structure on the roof where the filming took place. The cast consists of one man only, casually dressed, and the whole action of the film consists of that one man dancing to music. He performs a strange (what Mr Norowzian's counsel described as a rather quirky) dance, but the particularly striking feature of the impact of the film is the result of filming and editing techniques employed by Mr Norowzian, who operated the camera, and carried out the editing of the rushes himself. The filming was carried out with a camera in a fixed or 'locked-off' position, and the editing made extensive use of a process called 'jump cutting'. This is a film editing process whereby the editor excises pieces of the original film within a sequence of movements by the actor, with the result that on the edited version of the film he appears to have performed successively, without an interval, two movements that in reality could not have immediately succeeded each other. . . The result of this technique being used in editing is, of course, a film apparently containing sudden changes in position by the actor or dancer which could never have been performed as successive movements in reality. This gives the finished film what was referred to in the course of the trial before me as a surreal effect."

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.   

The Appeal

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."

Although the Court of Appeal held that Joy was protected by copyright as a dramatic work, the Court agreed with the trial judge that such copyright had not been infirnged since no substantial part of that film had been copied.