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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 3018,  ECDR 205,  FSR 363,  EMLR 67
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Rattee)
B e f o r e :
LORD JUSTICE BROOKE and
LORD JUSTICE BUXTON
|(1) ARKS LIMITED|
|(2) GUINNESS BREWING WORLDWIDE LIMITED|
Smith Bernal Reporting Limited
180 Fleet Street London EC4A 2HG
Tel: 0171 421 4040 Fax: 0171 831 8838
(Official Shorthand Writers to the Court)
MR P PRESCOTT QC and MR T MITCHESON (instructed by Messrs Theodore Goddard, London EC1) appeared on behalf of the Respondent First Respondent.
MR A SPECK (instructed by Messrs Herbert Smith, London EC2) appeared on behalf of the Respondent Second Defendant.
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Nourse:
The primary, though not the decisive, question on this appeal is whether a film can be a "dramatic work" for the purposes of the copyright provisions of the Copyright, Designs and Patents Act 1988. The decisive question is whether, if the claimant's film "Joy" was such a work, the defendants, in their film "Anticipation", copied a substantial part of it. Although the arguments in this court lasted for nearly two and a half days, both questions can be briefly answered.
The appeal is brought by the claimant, Mehdi Norowzian, against Mr Justice Rattee's dismissal of his action for breach of copyright against the first and second defendants, Arks Ltd and Guinness Brewing Worldwide Ltd, his claims against the third defendant, Guinness Plc, having been abandoned during the trial. Claims against the defendants for passing-off were also abandoned.
The judge's judgment, reserved after a trial extending over some six days, was delivered on 17th July 1998. It is reported in full at  EMLR 67. All references to page numbers are to the pages in that report. Between pp. 70 and 76 there is a description of the background to the action, the main features of the two films and the nature of the claimant's claim. There follow a statement of the relevant facts, references to the evidence and an account of the proceedings to date. Since no sustainable criticism has been made of this part of the judgment, it need not be extensively repeated and I adopt it as part of my own.
At this stage it is only necessary to set out the essentials of the judge's descriptions of the two films at pp. 70-71. Of the claimant's film he said:
"Joy is 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."
Of the defendant's film the judge said:
"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 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."
The provisions of the 1988 Act which bear on the question whether a film can be a dramatic work are the following. Section 1(1) provides:
"Copyright is a property right which subsists in accordance with this Part in the following descriptions of work -(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films, broadcasts or cable programmes, and
(c) the typographical arrangement of published editions."
So far as material, section 3(1) provides:
"In this Part -'literary work' means any work, other than a dramatic or musical work, which is written, spoken or sung ...
'dramatic work' includes a work of dance or mime; and
'musical work' means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music."
So far as material, section 3(2) provides:
"Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise ..."
Section 5B(1) provides:
"In this Part 'film' means a recording on any medium from which a moving image may by any means be produced."
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.
Mr Justice Rattee was of the opinion that a film per se cannot be a dramatic work within the meaning of the 1988 Act, though it can be a recording of such a work for the purpose of section 3(2); see p. 77. His view was based partly on the different categorisations adopted by paragraphs (a) and (b) of section 1(1) and partly on the express exclusion of films from the definition of dramatic work in the Copyright Act 1956; see section 48(1) of that Act. Although we were not referred to transcripts of the arguments in the court below, my strong impression is that the judge's view was influenced by the submissions of counsel then representing the claimant, who do not appear to have argued that Joy was itself a dramatic work. At p. 77 the judge records the submission of the claimant's leading counsel as being that "Joy is clearly a work of dance and mime which has been recorded on film".
The argument that Joy is itself a dramatic work has been put at the forefront of the submissions of Mr Arnold, who, with Miss Reid, has appeared for the claimant in this court. That has led to an enervating dispute as to whether the point was taken below and, if it was not, whether it can be taken now. I do not believe that it was distinctly taken before the judge. That has opened the way for the defendants to object that, if it had been, they might have been able to adduce evidence which would have prevented it from succeeding; cf Ex p. Firth (1882) 19 Ch.D. 419, 429, per Sir George Jessel MR. I am not persuaded that there is any substance in that objection. I see no reason why the claimant should not be allowed to take the point now.
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.
As to those reasons, 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.
Once it is established that a film can be a dramatic work for the purposes of the 1988 Act it is clear that Joy, being a work of action capable of being performed before an audience, is such a work. Clearly, it is an original work. Two further points must be mentioned in relation to the primary question. First, in support of his argument on the 1988 Act, Mr Arnold relied on certain European materials, in particular the Berne Copyright Convention (as revised and amended up to 1979). In my view it is unnecessary to have resort to those materials as an aid to the construction of the 1988 Act. Secondly, Mr Arnold submitted, in the alternative, that Joy was a recording of a dramatic work. In agreeing with Mr Justice Rattee that that submission must be rejected, I need do no more than read the following passage from his judgment at p. 78:
"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. . . 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."
Joy, just like many cartoon films, is, without being a recording of one, a dramatic work in itself.
I turn to the question whether the defendants, in their film Anticipation, copied a substantial part of Joy; see section 16(1) and (3)(a) of the 1988 Act. Although Mr Justice Rattee's view that Joy was neither a dramatic work nor a recording of a dramatic work was sufficient to dispose of the case in favour of the defendants, he quite rightly went on to consider this further question. Having done so at some length, he decided it in favour of the defendants. His reasons for doing so are set out at pp. 80 and 81. Despite Mr Arnold's well-sustained argument to the contrary, I have been unable to fault the judge's reasoning in any substantial respect. Like him, we have viewed both films on several occasions. Like him, and for the like reasons, I think it is impossible to say that Anticipation is or includes a copy of a substantial part of Joy.
As the judge recognised, the highest it can be put in favour of the claimant is that there is a striking similarity between the filming and editing styles and techniques used by the respective directors of the two films. But no copyright subsists in mere style or technique. Mr Prescott QC, for Arks Ltd, instanced the technique of Pointillism, which was originated by the neo-impressionists Seurat and Signac. That was a telling example. If, on seeing La Baignade, Asnières at the Salon des Artistes Indépendants in 1884, another artist had used precisely the same technique in painting a scene in Provence, Seurat would have been unable, by the canons of English copyright law, to maintain an action against him. Other examples of original artistic styles or techniques whose imitation in the production of an entirely different subject matter would not found such an action might be the "sprung rhythm" of Gerard Manley Hopkins' verse or the thematic build-up of Sibelius's second symphony. So here, the subject matter of the two films being, as the judge said, very different one from the other, the similarities of style and technique are insufficient to give the claimant a cause of action against the defendants.
Relying on a recent line of authority culminating in the judgment of Robert Walker LJ in Pro Sieben Media AG v. Carlton UK Television Ltd  FSR, 618-619, Mr Prescott submitted that an appellate court should be slow to reverse the finding of the trial judge on a question of fact and degree, a jury-type question, such as the question whether a defendant has copied a substantial part of the claimant's work. While entirely subscribing to that principle, I do not need to rely on it here. This is a very plain case in which it would be impossible for this court to reverse the judge's finding.
I would dismiss this appeal.
Lord Justice Brooke:
I agree that this appeal should be dismissed for the reasons given by Nourse LJ. I also agree with the more general observations about the application of the 1988 Act to films which are contained in the judgment of Buxton LJ which I have had the opportunity of reading in draft.
Lord Justice Buxton:
Out of deference to the arguments addressed to us, I venture to make some observations about the application of the Copyright Designs & Patents Act 1988 to films, even though in the event the particular issue debated before us, of the relationship between films and the concept of "dramatic work" employed in the 1988 Act, does not arise on the facts of this case.
A film, at least as referred to in section 5B of the 1988 Act, is a physical recording, whether in celluloid or in another medium. As Mr Steinfeld QC recognised in Norowzian v Arks (No 1)  FSR 394, that film is something different from the cinematographic work contained within it. A cinematographic work may be a recording of something that, separately, can be regarded as a dramatic work, for instance a play or a performance of dance; or, as is claimed in the present case, it may be a work that has no existence apart from, and can only be given expression through, the film. A cinematographic work of the latter sort will usually be a dramatic work in the ordinary sense of that expression indicated by Nourse LJ, it being capable of being performed before an audience by the showing of the film. However, some works that are works of recording, rather than cinematographic works in their own right, may, as Nourse LJ says, not be a recording of a dramatic work at all.
To the extent, however, that any respects in which the nature of some films (though not, for the reasons given by Nourse LJ, Joy that is the subject of this case) might be thought to raise questions as to the reach of the 1988 Act, I for my part would escape from any such difficulties by referring to the Berne Convention, which recognises a category of "cinematographic works" that, by article 14bis, signatory countries have to protect as original works: provided of course that the particular work is indeed original. Although "dramatic works" are separately referred to in the Convention, I accept that, if the 1988 Act is to be interpreted consistently with this country's international obligations under the Convention, the cinematographic works referred to in the Convention have all to be included within the Act's category of dramatic works: even in cases where the natural meaning of "dramatic work" does not or might not embrace the particular film in question.
The judge held that "a film per se cannot be a dramatic work". It will be clear from what has just been said that, like Nourse LJ, I cannot agree with him in those broad terms. It is only fair to the judge, however, to say that, from what one can glean of the way in which the matter was put at the trial, he may well have thought that Joy was being argued to be a recording of a (separate) dramatic work (which for the reason that the judge gave it plainly was not); and that the extended construction of "dramatic work" in the 1988 Act adopted above was not argued before him. It also follows from the construction of the 1988 Act that I feel obliged to adopt out of deference to the Berne Convention that it is not enough to exclude Joy from the protection of the Act to say, as did the respondents, that it is not a dramatic work in the ordinary English sense of that expression. I agree with Nourse LJ that that contention is not correct as a matter of fact; but in any event, for the reasons that I have endeavoured to state, "dramatic work" in the 1988 Act must comprehend not only drama in any traditional or normal sense but also cinematography.
Granted, then, that a cinematographic work of the nature of Joy is in principle the subject of protection under the 1988 Act, what in this case is "the work" protected by sections 16 and 17 of that Act? Mr Arnold, for the plaintiff, said that it was the film Joy and the whole of it. The claimant had the copyright in that work, and he was entitled to complain if any sufficiently substantial part of it had been copied. It was not the right approach to take the elements that were alleged to be reproduced, and to ask whether those elements separately enjoyed copyright protection, because it was the work as a whole that was protected. And it was conceded, as indeed was inevitable for the reasons set out in Nourse LJ's judgment, that most of the elements in or characteristics of Joy did not, separated from their particular context, enjoy copyright protection. It was thus agreed that the general features said to mark out Joy, such as its rhythm, pace and movement; the arbitrary sequence of the actor's or dancer's movements; the use of jump-cutting and other techniques; and its theme, explained to us as that of a young man releasing his tension by performing a rather bizarre collection of dance movements in a rather surreal setting; could none of them be the subject of copyright. Moreover, the detailed similarities relied on as sufficiently original in themselves to attract copyright seemed to come down to the presence in Anticipation of movements, such as the arabesque, that are also found in Joy. That was an unpromising basis for an allegation of substantial copying; but the claim was in any event destroyed by the evidence of an expert choreographer, Miss Eyles, adopted by the claimant at the trial, that, viewed as dance movements, there was in fact no particular similarity between the features relied on.
What therefore was original about Joy was indeed what was said to be the subject of the copyright: the film as a whole. The theme and originality of Joy was, as Mr Norowzian's evidence stressed, a representation in stylised form of a young man hesitating with tension when coming amongst a group of unknown people but gradually gaining self-confidence. That essence and originality of Joy is however not reproduced at all in Anticipation. The drinker is not hesitant, but impatient. The only tension from which he suffers is not that of introspection, but of separation from his drink: as the advertiser of the drink no doubt wished to convey. For that reason, I am doubtful whether there has been any copying at all of Joy in its status as a copyright work. And even if that is not so, the nature of Joy, and of what gives it its copyright protection as a work, must affect the question of whether Joy has been substantially copied.
On any view of the latter question I can see no ground on which the judge's conclusion can be challenged. It was agreed, indeed asserted, by the claimant that substantiality is a matter of impression. That being so, I agree with the submission of Mr Speck that where it is not suggested that the judge has made any error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at least by two of them, will be different from that of the trial judge. This in my view is a particularly strong example of the general principle stated by Robert Walker LJ in Pro Sieben Media, to which Nourse LJ has referred. But in any event, looking at the two films side by side, as we were urged to do, and as we have done many times both in and out of court, my own impression coincides with that of the judge. And I should make plain that that was and is my view when simply looking at Joy without the benefit of Mr Norowzian's exegesis of it, to which I have referred above; as well as being my view when I now understand from that exegesis what it is that the original dramatic work Joy seeks to convey.
Order: as between the appellant and the first defendant, appeal dismissed with costs; as between the appellant and the second and third defendants, appeal dismissed with costs up to and including 22nd January 1999; no costs to the second and third defendants being awarded thereafter.