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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Norowzian v Arks Ltd & Ors  EWHC 315 (Ch) (17 July 1998)
Cite as:  EWHC 315,  FSR 79,  EMLR 67,  EWHC 315 (Ch)
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B e f o r e :
|ARKS LIMITED AND OTHERS|
MR P PRESCOTT QC and MR T MITCHESON appeared on behalf of the First Defendant.
MR A SPECK appeared for the Second and Third Defendants.
Crown Copyright ©
MR JUSTICE RATTEE: The plaintiff ("Mr. Norowzian") is a film director. He is now a successful director of advertising films, for which he has won some prestigious awards. in 1992 he directed a short film, which he called "Joy". It was not made as an advertising film, but as an example of Mr. Norowzian's creative work, and he included it in what is called a "show reel", which contains examples of a director's work, and which is made available to advertising agents and others who might be interested in employing the maker to direct a film for them. "Joy" is a very short film with no dialogue, but it is a striking film, which made a big impression on those to whom a copy of it was sent as part of Mr. Norowzian's show reel. It was produced on an extremely low budget. 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 visual impact of the film is the result of the 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. For example, apparently in the course of the actor's performing his dance some way away from the camera, his face suddenly appears close in front of the camera, without the actor apparently having moved from his original position. The result of this technique being used in editing is, of course, a film apparently containing sudden changes of 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.
As I have said, "Joy" contains no dialogue. According to Mr. Norowzian the actor's movements to the musical background tell a story of the development of the emotions of the sole character from diffidence to exuberant joy, portrayed by a development of his movements from being tentative to being increasingly broad and confident. There is no doubt that the little film is a striking example of a talented film director's art. It caused a considerable stir in the world of advertising film producers. Mr. Norowzian claims that he is entitled to copyright in respect of "Joy", which he says has been breached by the making and publication of a filmed advertisement for Guinness stout which was first published in cinemas and on television in Eire and Northern Ireland in 1994, and was subsequently similarly exhibited in England and Wales.
The makers of the Guinness advertisement called it "Anticipation", because 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 moments. 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.
Mr. Norowzian claims that "Joy" represents a dramatic work within the meaning of those words in section 1 of the Copyright, Designs and Patents Act 1988 as amended ("the 1988 Act"), as defined in section 3 to include "a work of dance or mime", in respect of which he is entitled to copyright as being the maker of it, and therefore the "author" within the meaning of sections 9 and 11 of the 1988 Act. He claims that "Anticipation" represents a copy of a substantial part of "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.
Mr Norowzian claims that "Joy" represents a dramatic work within the meaning of those words in section 1 of the Copyright, Designs and Patents Act 1988 as amended ("the 1988 Act"), as defined to section 3 to include "a work of dance or mime", in respect of which he is entitled to copyright as being the maker of it, and therefore the "author" within the meaning of sections 9 and 11 of the 1988 Act. He claims that "Anticipation" represents a copy of a substantial part of "Joy" within the inclusive definition of "copy" in section 16 of the Act, and therefore an infringement of his, Mr. Norowzian's copyright by virtue of section 17 of the Act. It was common ground at the trial that, in order to succeed, Mr. Norowzian has to establish (a) that his film "Joy" does indeed constitute or comprise a "dramatic work" and (b) that "Anticipation" is, or includes, a copy of a substantial part of that dramatic work. Despite the ingenious attraction of his submissions Mr. Norowzian's counsel, Mr. Floyd Q.C. failed to persuade me that the evidence established either (a) or (b). The action therefore fails, but before I explain why, I must set out the relevant facts as I find them. They can be quite shortly stated. The evidence adduced by Mr. Norowzian included a considerable amount of material which became irrelevant in view of his abandonment in the course of the trial of a claim in passing off, which had previously been included in the action.
Before I relate the relevant facts I should refer to one point relating to the evidence on which I have based my findings of fact. Mr Prescott Q.C., counsel for the first defendant, Arks Limited ("Arks"), and Mr. Speck, counsel for the second and third defendants, Guinness Brewing Worldwide Limited and Guinness plc., elected not to call any evidence. However, Mr. Floyd wished to rely on (a) some matters in a witness statement of a Mr. Lowe, produced on behalf of Arks, which was included in the witness statements exchanged by the parties before the trial, and to which one of Mr. Norowzian's witnesses was referred in the course of cross-examination, and (b) on other matters in two reports made by a Miss Amanda Eyles, a choreographer, which had been included in reports of expert evidence produced by Arks before the trial. It was common ground between counsel that in those circumstances I should treat all the contents of Mr. Lowe's witness statement and Miss Eyles' two reports as evidence in the case, even though Mr. Prescott had called neither of them, although I must, in considering what weight to place on any particular part of the evidence of those witnesses, bear in mind that I have not had the advantage of hearing their evidence tested in cross-examination.
One of the recipients of a show reel including Mr. Norowzian's "Joy" was Arks, an Irish company which carried on the business of advertising agent and, as such, was at the time acting for Guinness (Ireland) Limited, a member of the Guinness group of companies, which was the company responsible for the promotion and distribution of Guinness stout in Ireland, both in Eire and in Northern Ireland. Arks first became aware of Mr. Norowzian's directing style when some of the members of its creative team, including Mr. Lowe, saw the reel containing "Joy" some time in 1993. Some months later, at the beginning of 1994, Arks wanted to produce an advertising film 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. Mr. Lowe, the art director of Arks, says in his statement, and I accept, that in devising this theme for a Guinness advertising campaign, he was influenced by a scene in the film of Roddy Doyle's novel, "The Snapper", in which a man, elated by the birth of his first grandchild, rushes feverishly into a public house to celebrate with a pint of Guinness, but, despite the urgency of his celebrations, 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 idea, Mr. Lowe remembered "Joy". He decided to show it to his client, Guinness (Ireland) Limited, as an example of a style of short film featuring one man engaged in increasingly frantic activity which might be appropriate to the proposed advertisement. Mr. Lowe and his team at Arks put together a script and storyboard for the proposed advertisement and presented it to their client, with a copy of "Joy". The client liked the idea and Mr. Lowe decided to ask Mr. Norowzian himself to direct the Guinness film. He refused, because he took the view, according to his own evidence, that Arks really wanted a remake of "Joy" "with a beer glass superimposed to represent their client's product." Mr. Norowzian was unwilling to direct such a film "because it would have meant going back over my own work and would have involved no creativity on my part." Because Mr. Norowzian regarded the storyboard sent to him by Arks as representing a copy of his film, he asked for a message to be passed to Arks, by an employee of the film production company with which he was working at the time, to the effect that Arks "should stay well away from "Joy"."
Having been rebuffed by Mr. Norowzian, Arks approached another director, one Ritchie Smyth. They showed Mr. Smyth a copy of "Joy", and told him their idea was to produce a commercial "with an atmosphere broadly similar to that portrayed in 'Joy'." They suggested that Mr. Smyth might use various film techniquest, including jump cutting, which Mr. Norowzian was by no means to the first film maker to use. It was a technique in common use. Mr. Lowe asked Mr. Smyth to create a new storyboard for the proposed film. Mr. Lowe considered the original one that had been sent to Mr. Norowzian to be too close to "Joy". Mr. Smyth agreed to do this. Indeed he was all in favour of creating a new storyboard, because "he wanted to do his own thing".
An actor for the proposed Guinness commercial was then chosen, a Mr. Joseph McKinney. I heard evidence from him, and although I have serious doubts about the reliability of the detail of his recollection of the process of making the commercial, I accept his evidence as essentially truthful. Mr. Norowzian can, of course, have no complaint about by doing so, since Mr. McKinney was called by him as his witness. There is a conflict between Mr. McKinney's evidence and Mr. Lowe's statement as to the stage in the making of the advertisement at which Mr. McKinney was first shown "Joy". However, I do not think it matters. What I find is clear is that he was shown the film "Joy", either in its original form or with a pint glass superimposed on it, on more than one occasion during the time he was engaged in preparing for the new film. According to a witness statement given by Mr. McKinney to Mr Norowzian's solicitors and confirmed by Mr. McKinney in his oral evidence in chief, he was told by Mr. Smyth and Mr. Lowe "to imitate, emulate and expand upon 'Joy' -- it was clearly to be used as the instructional model and references were constantly made back to it." In a later statement given by Mr. McKinney to Arks' solicitors, of which he also confirmed the truth (with an immaterial exception) in the course of his cross-examination, he described a rehearsal session prior to the shooting of "Anticipation", which session was attended by a Cindy Cummins, a choreographer. In the course of that rehearsal both Mr. Smyth, the director, and Miss Cummins, the choreographer, referred to "Joy". However, of that rehearsal session Mr. McKinney said this:
"We concentrated on the feel, rhythm and pace of my movement rather than any set pieces. They were trying to capture a quirkiness and a certain atmosphere. At the end of the day, I would have done my own movements even is asked to repeat other movements because that is the way I would have dealt with it when on camera. It was the rhythm and pace and mood of "Joy" which I felt that I was emulating rather than the actual movements from that film. I did have "Joy" in mind once or twice when I jumped around the room but not for the actual movements that I was doing."
I accept this evidence of Mr. McKinney. It is substantially confirmed by the independent expert choreographer, Miss Eyles, whose reports, as I have said, Mr. Floyd put in evidence, although she was originally proposed to be called as Arks' expert witness. In the first of her two reports she said this:
"I believe that any similarities which do exist between 'Joy' and 'Anticipation' lie principally in the visual impact of the two works; an impact which is achieved by camera positions, and filming, cutting and editing techniques.
In terms of the performance by the actors of the movements contained in the two Dramatic Works, there are few similarities; the movement material is distinct to each work, and the style, dynamic and mood is also distinct ...
In terms of performance, in my opinion, the dramatic work entitled "Anticipation" does not replicate any significant elements of the dramatic work entitled 'Joy'."
Since Miss Eyles was not called as a witness, her evidence was not tested in cross-examination. However, in my opinion, it is consistent with, and really adds nothing to, what I was able to see by my own viewing of the two films, which I have now watched throughout on a number of occasions.
Following the rehearsal session to which Mr. McKinney referred in his evidence, the actual shooting of "Anticipation" took place on 27 and 28 April 1994. Mr McKinney does not really "Joy" being specifically referred to during shooting, but he said:
"There is no doubt in my mind that 'Joy' was central to the advertisement and that this was understood throughout by Ritchie Smith [sic], Gary Lowe, the choreographer and myself."
Following editing and the production of a final version it was first shown on television and cinemas in Eire and Northern Ireland on 16 May 1994. It was a great success. Sometime in the Summer of 1994 it was decided by the second defendant, Guinness Brewing Worldwide Limited ("GBW"), which was responsible for the sale of Guinness in this country, that the commercial should be used also in England and Wales, though it was not actually shown here until November 1994, after being made to substitute an English shape pint glass for the Irish shape one used in the original version.
Meanwhile Mr. Norowzian had seen "Anticipation", and in July 1994 instructed solicitors to write to Arks to complain that it represented an infringement of his copyright in "Joy". Messrs. Harbottle & Lewis wrote on 8 July 1994 to Arks alleging a breach of copyright and threatening proceedings if Arks failed to give certain undertakings within seven days. Messrs. Theodore Goddard, Arks' solicitors, replied on 12 July 1994 rejecting the claim that Mr. Norowzian's copyright had been infringed by "Anticipation", and refusing to give the undertakings sought on his behalf. Messrs. Harbottle & Lewis replied on 14 July, again, threatening proceedings. On 10 March 1995 new solicitors acting for Mr. Norowzian, this time Messrs. Lewis Silkin, wrote to the third defendant, Guinness plc, which I understand to be the holding company of GBW, complaining that "Anticipation" (referred to in the letter for some reason as 'Performance') infringed Mr. Norowzian's copyright and seeking undertakings not to use the commercial again. Messrs. Theodore Goddard rejected the complaint and refused undertakings. Still no proceedings were started by Mr. Norowzian.
On 19 July 1996 yet another firm of solicitors acting for Mr. Norowzian, his present solicitors, Messrs. Briffa & Co., wrote to Arks saying that Mr. Norowzian had "secured insurance to take proceedings against Arks. Accordingly our client will, unless a commercial statement can be reached, issue proceedings in this matter." The letter then offered to compromise
Mr Norowzian's claim on terms that Arks paid him £200,000 and his costs. This offer does not seem to fit happily with the assertion, made by Mr. Norowzian in interviews regarding his claim given by him to the BBC (the latter of which was on the first day of the trial before me) and repeated to me in cross-examination (see Transcript Day 3 p. 162 1.13), that his concern in this litigation is to establish a point of principle on which he feels strongly, not money. In any event Arks again rejected his claim. Again Mr. Norowzian's solicitors threatened proceedings, but no proceedings followed until eventually, on
17 March 1997, the writ in the present action was issued. The statement of claim alleged that all three defendants were liable to Mr. Norowzian, not only for infringement of copyright, but also for passing off. In the course of the trial the claim in passing of was abandoned as against all three defendants, and the claim in copyright as against the third defendant, the Guinness holding company. Also in the course of the trial GBW, which had previously denied that it was liable for any infringement of copyright by reason of its having authorised the use of "Anticipation" in England and Wales, accepted that action should be determined on the footing that it had authorised such use.
Does "Joy" constitute or comprise a Dramatic Work?
Section 1(1) of the Copyright, Designs and Patents Act 1988, as amended, provides that:
"Copyright is a property right which subsists in accordance with this Part in the following descriptions of work --
(a) original literacy, dramatic, musical or artistic works,
(b) sound recordings, films, broadcasts or cable programmes, and
(c) the typographical arrangement of published editions."
It is common ground between the parties to this action that the only description of work relevant in the present case is dramatic work, and that Mr. Norowzian is entitled to no copyright under the 1988 Act in respect of "Joy" unless it is, or is a recording of, a dramatic work within the meaning of section 1(1) of the Act. Section 3(1) provides that "dramatic work" includes a work of dance or mime."
Section 3(2) of the 1988 Act provides that "copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise."
At first sight one might think that the 1988 Act contemplated a dramatic work as being something other than a film. For section 1(1) includes dramatic works in one category of works, lettered (a) in the subsection, and films in another category, lettered (b), and the Copyright Act 1956 clearly excluded films from the meaning of dramatic works -- see section 48(1). However, section 5B of the 1988 Act as amended contains a definition of "film" for the purposes of Part 1 of the Act as meaning "a recording on any medium from which a moving image may by any means be produced." Thus the reference in section 1(1) to films is a reference to the actual material recording -- the celluloid or videotape -- and not the subject matter of the recording, that is to say what is recorded on the celluloid or videotape. I accept the submission made to me by all parties that a film can be a recording of a dramatic work, though I do not think that a film can itself be a dramatic work. The submission of Mr. Floyd, on behalf of Mr. Norowzian, was that (and I quote from his very helpful skeleton argument) "'Joy' is clearly a work of dance and mime which has been recorded on film."
The question that has to be answered in order to determine the first issue is whether that is recorded on the film "Joy", that is to say the series of images that is produced on a screen on a showing of the film, constitutes a "dramatic work". I accept that, had the finished film been a recording of the dance routine performed by the actor in "Joy" in front of the camera, it might well have represented a recording of a work of dance or mime, and, therefore, a dramatic work. It does not. A large, probably the major, part of the effect of the film is the "quirky" or surreal effect produced by the editing techniques used by Mr. Norwozian in the cutting room after shooting of the film was complete, and, in particular, the technique of jump cutting. The finished result is something very different from a recording on film of the dance or mime routine performed by the actor. The result is that, when the film is shown to the viewer, what he sees is a sequence of movements apparently performed by the actor, but which in reality was not, and could not physically have been, performed by any actor. For the effect of the editing techniques used by Mr. Norowzian has been to excise certain parts of the sequence of movements performed by the actor and to join together the parts immediately preceding and immediately following the parts excised. The result is striking, but unreal. No human performer could have performed the routine displayed by the film. It would be a physical impossibility.
In my judgment a film per se cannot be a dramatic work within the meaning of the 1988 Act. It can, on the other hand, be a recording of a dramatic work for the purpose of section 3(2) of the 1988 Act. The dramatic work is something that exists apart from the film, even if the film is the only form in which it is recorded. In his very helpful and illuminating argument on the relevant law Mr. Prescott postulated the case of a choreographic work -- a work of dance, and therefore a dramatic work within the definition in section 3 of the 1988 Act -- that had never been recorded in any form of notation or otherwise before being performed by dancers in front of a film camera. I accept that, assuming the choreographic work was recorded in the final film, and did not appear therein in a form transmuted by interference with the sequence of it in the process of editing the film, the film would be a recording of a dramatic work. It would not itself be a dramatic work. That is why, in my judgment, section 1(1) and the succeeding provisions of Part 1 of the 1988 Act treat dramatic works and films separately. This real distinction was recognised by the definition of "dramatic work" in section 48 of the Copyright Act 1956 as excluding a cinematograph film as opposed to a script for such a film. As Mr. Prescott pointed out, there is an important difference between the treatment of a choreographic work by the definition of "dramatic work" in section 48 of the 1956 Act, and its treatment by the 1988 Act. For such a work was included in the definition of a dramatic work in the earlier Act only if it had been reduced to writing. Therefore a choreographic work recorded on film would be entitled to copyright only if it had first been recorded in some form of writing. This is not so under the 1988 Act, which entitles a work of dance, as a dramatic work, to copyright provided it is recorded in writing or otherwise. Thus, in my judgment, copyright can now subsist in a work of dance, as a dramatic work, to copyright provided it is recorded in writing or otherwise. Thus, in my judgment, copyright can now subsist in a work of dance, or other dramatic work, by virtue of its being recorded on film, but the film is the recording of the dramatic work, not the dramatic work itself.
I have dealt with this distinction at some length, because it seems to me to be important in the present case. The film "Joy", like any other film, is not, in my judgment, itself a dramatic work. "Joy", unlike some films, is not a recording of a dramatic work, because, as a result of the drastic editing process adopted by Mr. Norowzian, it is not a recording of anything that was, or could be, performed or danced by anyone. I accept Mr. Prescott's submission that to be a dramatic work a work must be, or be capable of being, physically performed. More particularly "a work of dance or mime" must be capable of being danced or mimed. That is inherent in the ordinary meaning of the words. A similar view appears to have been adopted by the Privy Council in Green v. Broadcasting Corporation of New Zealand  R.P.C. 700 at p. 702, where Lord Bridge of Harwich, delivering the advice of the Board, said that "it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance." It may well be, in the case of "Joy", that the original unedited film of the actor's performance, what I believe are called "the rushes", was a recording of a dramatic work, but Mr. Norowzian's claim is not in respect of copyright in them or their subject matter. His claim is in respect of the finished film. In my judgment that neither is, nor is a recording of, a dramatic work.
For completeness I should mention that, of course, as a film (as opposed to a dramatic work) "Joy" is prima facie the subject of copyright by virtue of section 1(1)(b) of the 1988 Act. However, Mr. Norowzian's original claim that "Anticipation" constituted an infringement of that copyright was struck out by the court on 17 December 1997 on the ground that it was hopeless, since infringement of film copyright requires a copying of the actual film, that is to say the recording constituted by the film, and does not include copying of the subject matter of the film, and there was no copying of any of the frames of the material film in this case (see Norowzian v. Arks Limited  FSR 394). I am therefore concerned only with Mr. Norowzian's claim to copyright in "Joy" as a dramatic work.
Mr. Floyd, on behalf of Mr. Norowzian, submitted that the conclusion which I have reached would leave a serious lacuna in the protection of originality by the 1988 Act. For it would mean that Mr. Norowzian enjoys no protection for the admitted originality of his film as a manifestation of the film maker's art. The court should, ran the submission, be reluctant to construe the Act in such a way that it excludes such a manifestation from the implementation of the principle, clearly intended to be adopted by the Legislature, of protecting work of originality from copying. The answer to the submission is, in my judgment, that what Mr. Norowzian is seeking to protect is the originality of his finished film, as opposed to that of any dramatic work recorded by his film. Such protection would require an extension of the effect of the provisions of the 1988 Act relating to film copyright beyond the limits given to them by the court in striking out Mr. Norowzian's claim to such copyright in this case, from which decision Mr. Norowzian did not appeal. It is not, in my judgment, open to me to try and fill the resulting lacuna by giving a forced construction to the meaning of the term "dramatic work" as used in the Act.
My conclusion that "Joy" is neither a dramatic work nor a recording of a dramatic work is fatal to this action. However, in case I should be held elsewhere to be wrong in this conclusion, I should express my conclusions on the second issue that was argued, namely whether, assuming "Joy" is a dramatic work in respect of which copyright subsists, "Anticipation" infringes that copyright, as being a copy of it within the meaning of the 1988 Act.
Is "Anticipation" a copy of "Joy"?
By virtue of section 17(2) of the 1988 Act "copying in relation to a ... dramatic ... work means reproducing the work in any material form." Copying the work includes copying the whole or substantial part of it (see section 16(3)). So the question is: On the assumption (contrary to my primary conclusion) the matter recorded on the film "Joy" can be said to be a dramatic work? In my judgment it is still impossible to say that "Anticipation" is or includes a copy of a substantial part of that work. One only has to view the two films, which, as I have said, I have done on several occasions, to see that the subject matter of one is very different from the subject matter of the other. The story conveyed by "Joy", namely the growing in confidence and self awareness of the dancing character, is wholly different from that conveyed by "Anticipation", namely the impatient activity of a man waiting for his pint of Guinness to settle. The setting is basically different. Although I accept that there is a certain degree of similarity between the simple "craggy" backgrounds used in the films, the apparent setting is totally different. In "Joy" the man is dancing out of doors, apparently in front of some sort of canvas backdrop. In "Anticipation", although the actual environment of the dancer is not clearly defined, to make sense of the story portrayed it must be assumed that he is dancing in the same bar as is the barman from whom he orders his pint, which the dancing man is anxiously watching settle, and who tops the glass up in the course of his customer's impatient dancing. "Joy" has the one character only, "Anticipation" has two, the barman and the customer. In "Anticipation" the dancing customer does perform some movements which are performed by the dancer in "Joy". In particular both at one point jump into view from stage right, both raise and lower their eyebrows while seen in extreme close-up, both make movements of their fingers as if playing the piano and both perform an "arabesque" movement. However, such similar individual movements are performed in a totally different sequence in each film.
What are much more strikingly similar between the two films are the filming and editing styles used by the respective directors. Both used a fixed or "locked off" camera position. Both use varying camera speeds and, in editing, both use jump cutting techniques which, together with the varying speeds and the sepia tinted, colourless settings produce an effect of somewhat disturbing unreality or quirkiness. I accept that in "Anticipation" Mr. Smyth employed a style of film directing similar to that used by Mr. Norowzian in "Joy". I am satisfied that "Joy" provided Arks with an idea which was developed into "Anticipation" by Mr. Smyth by the use of similar filming techniques to those used by Mr. Norowzian in "Joy". It seems to me clear that "Joy" was used by Arks and Mr. Smyth as a point of reference in the production of "Anticipation". But, in my judgment, it is impossible to say that "Anticipation" reproduces a substantial part of the subject matter of "Joy", or, therefore of any dramatic work that might be comprised in "Joy", if I am wrong in my primary conclusion that there is none.
I read and heard a substantial body of expert evidence adduced by Mr. Norowzian from a choreographer and a retired advertising copywriter and creative director. There was an unfortunate dispute between the parties as to whether the latter, a Mr. Brignull, had been persuaded by Mr. Norowzian's solicitors to resile from an agreement which he had reached with an expert, a Mr. Baker originally proposed to be called by Arks. I need not resolve this. For, with great respect to the experts concerned, and the same applies to the evidence of Miss Eyles, the choreographer instructed by Arks, whose report was eventually put in by Mr. Norowzian, and Miss Hinkley, the choreographer called by Mr. Norowzian, I found very little, if any, assistance from their evidence in deciding the questions I have to decide. In particular the production of Miss Hinkley of a long list of alleged similarities between the two films, some of which were only a fraction of a second in length, and some so short that they could only be perceived by means of a video recorder set to show the films in very slow motion, so that they would have been invisible to anyone watching the films at normal viewing speed, was of no assistance to the court. This sort of approach amounts, in my opinion, to analysing the real effect of the film out of existence. The question whether one film is a copy of a substantial part of the other is, in my judgment, on which can be answered by the judge seeing the films and using the evidence supplied by his or her own eyes, as indeed Mr. Norowzian's expert, Mr. Brignull, inevitably accepted in the course of his cross-examination. In my judgment, the expenditure of time and money on expert evidence on this sort of question is to be deprecated.
I should also say, in case I am wrong in both my conclusions so far, that I am satisfied that, if "Anticipation" does (contrary to the view) contain a substantial part of a dramatic work comprised in "Joy", that is the result of copying, and not independent original creation. For there is no doubt that "Joy" was used by Arks, by Mr. Smyth, the director, by Miss Cummins, the choreographer, and by Mr. McKinney, the actor, as a point of reference in the course of the production of "Anticipation".
However, because, in my judgment, "Anticipation" does not reproduce a substantial part of any dramatic work constituted by, or comprised in, "Joy", Mr. Norowzian's claim in relation to it fails as against both Arks and GBW, and would have failed as against the third defendant, had it not been abandoned as against the defendant in the course of the trial. The action also included a claim that a computer screensaver programme incorporating extracts from "Anticipation" also infringed
Mr. Norowzian's copyright. It follows from my conclusion in relation to "Anticipation" itself that the claim in relation to the screensaver also fails.