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||Neutral Citation Number:  EWPCC 7
||Case No: 1CL70032
IN THE PATENTS COUNTY COURT
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
HIS HONOUR JUDGE BIRSS QC
Christopher Austins (instructed by direct profession access) for the Claimant
Ben Longstaff (instructed by Memery Crystal) for the Defendant
Hearing dates: 30th November 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
His Honour Judge Birss QC :
- This is an action about the ownership of copyright in film footage of a skydive over Mount Everest. The claimant, Stephen Slater, is a young cameraman. He shot the footage in question. His case is that copyright in it belongs to him. The defendant Per Wimmer is a financier. He paid for the trip, including Mr Slater's costs, and was one of the skydivers. He says the terms on which the event took place mean that the copyright belongs to him.
- The dispute arises because Mr Wimmer used some of the footage shot by Mr Slater in a television programme about the event which was broadcast on Danish television. Of course Mr Wimmer's case is that he was perfectly entitled to do that. However Mr Slater says he was not. The parties could not agree and Mr Slater began this action for copyright infringement. Mr Wimmer counterclaimed for a declaration that he was entitled to reproduce and licence reproduction of the work. The counterclaim also included a claim for infringement against Mr Slater. This related to the use by Mr Slater of his footage in a film about the skydive which Mr Slater himself published on YouTube.
- At the start and at the case management conference Mr Slater represented himself. Mr Wimmer's solicitors Memery Crystal had suggested to Mr Slater that he should take professional advice. At the CMC I suggested to Mr Slater that he would be well advised to take professional advice and that there were cost effective ways of doing that. By the time of the trial Mr Slater was represented by Christopher Austins instructed under the Bar's direct professional access scheme. At the trial Mr Wimmer was represented by Ben Longstaff instructed by Memery Crystal.
- Mr Wimmer's case is put on a number of bases. First and foremost he says that it was made expressly clear to Mr Slater in advance that all intellectual property rights arising from the trip would belong to Mr Wimmer. He was paying for it. It was his project. Mr Slater denies this and I need to resolve that factual dispute. There is no written contract dealing with the event. There were various emails but the main arrangements were made orally in meetings between various parties to which I shall return.
- Second Mr Wimmer says that in any event it was an implied term of the agreement governing the trip that he would own all the intellectual property.
- Third Mr Wimmer says that it was part of the agreement that he had a licence to exploit the copyright in the footage for his own commercial purposes. Accordingly there has been no infringement.
- Fourth the point is pleaded that Mr Wimmer is in fact a co-author of the film footage on the basis that he was the principal director and/or the producer of the footage.
- Mr Slater denies all this. He says there was no contract, that no term about intellectual property rights was ever put to him and that if it had been he would not have agreed to participate. He contends that there is no need for an implied term or licence and that Mr Wimmer was neither the principal director nor the producer of the footage.
- Both sides have raised a wide range of peripheral issues. Each side has sought to paint the other in a bad light, the forensic purpose being to undermine their opponent's credibility. I will address that below.
- Finally I should mention the question of jurisdiction and territoriality. Both sides have approached this case on the same basis, that is without regard to territory or jurisdiction and entirely focussed on English law. No point has been taken by Mr Wimmer that the film in question was broadcast in Denmark and not in the UK.
- Section 1(1)(b) of the Copyright Designs and Patents Act 1988 provides that UK copyright is a property right which subsists in films and a film is defined in section 5B as a recording on any medium from which a moving image may by any means be produced. By s5B(2) the sound track accompanying a film shall be treated as part of the film. There is no dispute in this case that the footage in question is a film in which copyright subsists.
- Section 11 of the 1988 Act relates to first ownership of copyright. It provides that the author of a work is the first owner of copyright in it. If the author is an employee then a different rule applies but there is no question about that in this case. The author of a work is the person who creates it (s9(1)) and in the case of a film (s9(2)(ab)) that person shall be taken to be the producer and the principal director. The term "producer" in relation to a sound recording or film is defined by s178 as the person by whom the arrangements necessary for the making of the sound recording or film are undertaken. The term "director" is not defined in the Act. In cases of joint authorship the references in the Act to the author are construed as references to all the authors (s10(3)). In the case of films, a film is treated as a work of joint authorship unless the producer and the principal director are the same person (s10(1A)).
- In some countries copyright relating to films is treated differently from the way in which it is treated under the 1988 Act. Two kinds of work are identified in which copyright can subsist: cinematograph works (Art. 2 of the Berne Convention) and "first fixations" of films. Under the 1988 Act they are combined. I am aware that the authors of Laddie, Prescott & Vitoria (4th Ed.) suggest that the provisions in the 1988 Act about ownership of films may be in breach of Community law (paragraph 7.42). Neither side made any submissions to me on the point. They both treated at Act is binding in the form in which it exists and I will not enter into the questions raised by the learned authors. As Kitchin LJ points out in his recent judgment Football Association Premier League v QC Leisure  EWHC 108 (Ch) the 1988 Act does not provide for two sets of rights in two different works, instead they are combined into one (paragraph 69).
- Thus, in summary, the producer and principal director of a film will own the copyright in that film. If they are two people then they will be joint owners.
- In practice the English rules of equity are also important. In Robin Ray v Classic FM  FSR 622 Lightman J dealt with a case arising from a dispute about ownership of copyright which arose from work done by claimant pursuant to a consultancy contract with the defendant. The defendant argued on various grounds that it owned the copyright. One argument was that it had commissioned the creation of the copyright work in question by the claimant and therefore the defendant owned the copyright in equity. Lightman J analysed the law on this question in detail from p640 to 644. The whole analysis is relevant to the case before me. It was approved in full by the Court of Appeal in R Griggs Group v Evans  EWCA Civ 11 (Jacob LJ paragraphs 13 to 16).
- In summary the salient points at the outset of Lightman J's analysis are:
(a) There are a considerable number of authorities where a copyright, brought into existence by a person ("the contractor") pursuant to a contract for services with another ("the client"), has been held to belong in equity to the client;
(b) The issue in every such case is what the client under the contract has agreed to pay for and whether he has "bought" the copyright.
(c) The alternatives in each case are that the client has bought the copyright, some form of copyright licence or nothing at all.
(d) The general principles governing the respective rights of the contractor and client are as follows:
(1) the contractor is entitled to retain the copyright in default of some express or implied term to the contrary effect;
(2) the contract itself may expressly provide as to who shall be entitled to the copyright in work produced pursuant to the contract;
(3) the mere fact that the contractor has been commissioned is insufficient to entitle the client to the copyright. Where Parliament intended the act of commissioning alone to vest copyright in the client e.g. in the case of unregistered design rights and registered designs, the legislation expressly so provides […]. In all other cases the client has to establish the entitlement under some express or implied term of the contract.
- This leads into the question of implied terms. Lightman J's analysis continued at point 4 with the law governing the implication of terms in contracts, referring to Liverpool City Council v. Irwin  AC 239, Philips Electronique v. British Sky Broadcasting Ltd  E.M.L.R. 472 and BP Refinery (Westernport) Pty Ltd v. The President, Councillors and Ratepayers of the Shire of Hastings (1978) 52 A.L.J.R. 20. Essentially the law is as stated by Lord Simon of Glaisdale in the BP Refinery case as follows:
for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.
- However the words of Lord Bingham in the Philips Electronique case are also important:
The courts' usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constrains on the exercise of this extraordinary power . . .
The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they can appear. Tempting, but wrong.
- Lightman J then continued and considered factors bearing on the implication of terms in the particular circumstances of cases like the one before him (and the one before me). He emphasised that a minimalist approach is called for. An implication may only be made if this is necessary, and then only of what is necessary and no more. If it is necessary to imply some grant of rights in respect of a copyright work, and the need could be satisfied by the grant of a licence or an assignment of the copyright, the implication will be of the grant of a licence only. Point (7) of Lightman J's analysis was then as follows:
(7) circumstances may exist when the necessity for an assignment of copyright may be established. As Mr Howe has submitted, these circumstances are, however, only likely to arise if the client needs in addition to the right to use the copyright works the right to exclude the contractor from using the work and the ability to enforce the copyright against third parties. Examples of when this situation may arise include: (a) where the purpose in commissioning the work is for the client to multiply and sell copies on the market for which the work was created free from the sale of copies in competition with the client by the contractor or third parties; (b) where the contractor creates a work which is derivative from a pre-existing work of the client, e.g. when a draughtsman is engaged to turn designs of an article in sketch form by the client into formal manufacturing drawings, and the draughtsman could not use the drawings himself without infringing the underlying rights of the client: (c) where the contractor is engaged as part of a team with employees of the client to produce a composite or joint work and he is unable, or cannot have been intended to be able, to exploit for his own benefit the joint work or indeed any distinct contribution of his own created in the course of his engagement: see Nichols Advanced Vehicle Systems Inc. v. Rees  R.P.C. 127 at 139 and consider Sofia Bogrich v. Shape Machines, unreported, November 4, 1994, Pat Ct and in particular page 15 of the transcript of the judgment of Aldous J. In each case it is necessary to consider the price paid, the impact on the contractor of assignment of copyright and whether it can sensibly have been intended that the contractor should retain any copyright as a separate item of property;
- Then at points (8) and (9) Lightman J considered the ambit of a licence in a case in which necessity requires only the grant of a licence and not an assignment. It must be the minimum which is required to secure to the client the entitlement which the parties to the contract must have intended to confer upon him. It must be limited to what is in the joint contemplation of the parties at the date of the contract. He said this:
Guidance as to the approach to be adopted is provided in a passage in the judgment of Jacobs J. in Beck v. Montana Constructions Pty [1964–5] N.S.W.R. 229 at 235 cited with approval by Widgery L.J. in Blair v. Osborne &Tomkins, supra at 87:
it seems to me that the principle involved is this; that the engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement.
- The learned judge ended his legal analysis with a consideration of some cases in which an assignment was implied but which appeared to be difficult to reconcile with the principles he had identified. He concluded that most if not all appeared to have been decided without considering the alternative of the implication of a licence and drew attention to an important change in the law in the 1956 Copyright Act which gave exclusive licensees a right to sue third parties. Lightman J ended with this:
These authorities [the ones he found difficult to reconcile] accordingly afford limited guidance today where the issue raised is whether the necessary implication is of an assignment or some form of licence. Indeed today it may be rare that necessity requires an assignment and the grant of an exclusive licence will not suffice.
- Mr Wimmer considers himself to be an adventurer. In 2000 he set up an organisation called Wimmer Space that specialises in space and adventure activities as well as charity work. It is the website and brand for his adventure activities but it is not a legal entity. In June 2008 he contacted Nigel Gifford who ran a company called High & Wild Ltd about taking part in a skydive over Mount Everest. He had heard that Mr Gifford had had the idea and had travelled to Everest, found a suitable location and carried out test skydives. Mr Wimmer says that he called Mr Gifford in June and explained that he wanted to be the first person to take part in a tandem skydive over Everest and wanted to film the skydive. Mr Wimmer says that Mr Gifford and he agreed that Mr Wimmer would organise this part of the trip including sourcing a cameraman and filming equipment. Mr Wimmer wanted to make two films, one in Danish focussing solely on himself (he is a celebrity in Denmark) and the other focussing on the other individuals as well to be more appealing to broadcasters outside Denmark. Mr Wimmer found a Danish cameraman, Kenneth Andreasen. Mr Andreasen agreed (orally) to go on the trip on the basis that Mr Wimmer would cover all the travel and living costs but would not pay a salary and Mr Wimmer would own all the intellectual property (IP).
- However Mr Wimmer wanted an English cameraman as well. He approached Chris Riley, an experienced writer, broadcaster and filmmaker. Mr Riley suggested Mr Wimmer approach a media production company called Wide Eyed Entertainment Ltd ("Wide Eyed"). The managing director of Wide Eyed was Miss Parule Basu-Barua. She has significant experience in the media and broadcasting industry. A meeting on the subject took place in August 2008 between Mr Wimmer, Mr Riley and Miss Basu-Barua. Mr Wimmer explained his plans: he would pay the travel and living costs of a cameraman but not a salary and he would own all the IP rights. If any profit was obtained as a result of syndicating the resulting film, once he had recouped his costs then he would agree some form of profit sharing arrangement with Wide Eyed. He explained these were the only terms he would accept.
- During the meeting Mr Riley explained he would not be able to film the skydive but would consider a suitable replacement. No names were mentioned.
- Mr Riley contacted a young cameraman he knew in August and asked if he was interested in becoming involved in a project to film the first skydive over Everest. The cameraman was Mr Slater. He was 21 years old at the time. Mr Slater says that since he is a documentary film maker and adventure sports enthusiast, he expressed a strong interest in becoming involved. He had a job at a television production company at the time and would need to take three weeks off work to go.
- A key event was a meeting which took place on 1st September 2008. It was attended by Mr Wimmer, Miss Basu-Barua, Mr Riley and Mr Slater. Mr Riley recommended Mr Slater to Mr Wimmer as the cameraman for the trip and Mr Wimmer accepted that recommendation. The upshot of the meeting was the Mr Slater was to join the project and Mr Wimmer would pay his costs of the trip but not a salary. Mr Wimmer says he made it clear to Mr Slater at the meeting that the IP would belong to Mr Wimmer. Mr Slater vehemently denies this. One of the questions I have to decide is what happened at that meeting.
- After the meeting there was an exchange of emails between Mr Wimmer, Chris Riley and two Wide Eyed staff (Miss Basu-Barua and David MacNab). This exchange showed that Mr Wimmer was happy to pay for Mr Slater's travelling expenses if Wide Eyed took care of camera related things. Mr Wimmer put two scenarios to Miss Basu-Barua. In scenario A nobody buys the documentary of the trip and in scenario B a broadcaster buys it. A possible profit share between Wide Eyed, High & Wild and Wimmer Space is mentioned. In both there is reference to Wimmer Space owning the IP. To be exact in one scenario the word used is "footage" but nothing turns on that.
- The project moved forwards. No written agreement was entered into. The matters were urgent because they were due to leave on 20th September. Also at that time Mr Wimmer was busy running his international corporate advisory firm Wimmer Financial LLP. It was a time of worldwide financial turmoil. Lehman Brothers bank had collapsed on 15th September 2008.
- Wide Eyed supplied video equipment for Mr Slater and on 20th September Mr Wimmer, Mr Slater and Mr Andreasen flew from Heathrow to Delhi. They ultimately arrived at Kathmandu on the 21st September and stayed in the Yak and Yeti Hotel. With them were three other individuals engaged by Mr Wimmer to play a part in the project. They were a still photographer Morten Brandstrup, a journalist Lars Vestergaard and a cinematographer Peter Laurasen. The group set off to trek to the skydiving site on 24th September. Mr Slater recorded film footage of the events and Mr Wimmer completed his skydive on 6th October. Mr Wimmer left at that stage. Mr Slater did not leave with the rest of Mr Wimmer's team. He stayed until 11th October in order to film the remaining sky dives of the High & Wild group.
- There are numerous conflicts of evidence as to exactly what happened at the Skydive in Nepal. It is clear that the trip was not harmonious. Mr Slater says that the dispute about the ownership of the IP in his footage first arose in Nepal. Mr Slater also claims that he had incurred out of pocket expenses of about £1,000 which were unpaid. Mr Wimmer denies this and also says that the arrangements by which Mr Slater's flight home was organised and paid for via a concierge service he uses (and therefore ultimately by Mr Wimmer himself) in effect amounted to fraudulent use of his credit card.
- In any event once Mr Slater had returned to England he put his footage on a hard drive and sent it to Mr Wimmer. From Mr Slater's point of view this was a gesture of goodwill and an attempt to protect his relationship with Mr Riley, who was embroiled in the dispute. Mr Slater assumed that should Mr Wimmer wish to make use of it, he would get in contact.
- In August 2010 Mr Slater became aware of a documentary entitled "Wimmer Over Everest" which had been broadcast on Danish television. He believes it was on channel DR2. Mr Slater obtained a copy and saw that it contained two and a quarter minutes of his footage. His father wrote to Mr Wimmer and raised the problem with him. Mr Wimmer's response was to deny that any of Mr Slater's footage had been used. He said that the hard disc was damaged and the shooting itself was of insufficient quality to use. He also explained that as far as he was concerned he owned all the IP and even if Mr Slater's footage had been usable, there never was any promise or agreement on subsequent payments.
- In fact it is clear that Mr Slater's footage was included in the Danish television programme. What Mr Wimmer said about the footage was incorrect. The Danish film had been put together by Mr Andreasen and did include two minutes thirteen seconds of Mr Slater's footage. I accept Mr Wimmer's explanation that at the time of his initial reply he genuinely believed none of Mr Slater's footage had been included. For some reason the Defence asserts that only 1 minute of footage was included but Mr Wimmer's first witness statement accepts that it was more than that. There is no dispute before me that the Danish programme includes the quantity of footage asserted by Mr Slater.
- After several telephone calls which did not resolve the matter Mr Slater sent an invoice to Mr Wimmer for £3,000 for the use of the footage. Mr Wimmer did not pay and this dispute arose.
- Mr Slater issued his claim form in the Northampton County Court using the money claim online procedure on 26th November 2010. Mr Wimmer's defence was filed while the matter was still at that court. In accordance with the money claim online procedure the claim was then transferred to the Central London County Court on the ground that that is the court covering the area where the defendant lives or carries on business. That was because Mr Wimmer's address on the claim form was given as an address in London which I understand is the London address of his Wimmer Financial business. Once the papers arrived at the CLCC it was transferred to the Patents County Court by the Order of District Judge Price on 28th February 2011. This was clearly appropriate.
- By June 2011 the case had not moved forward and so a CMC was fixed at the court's own initiative of 1st September 2011. The defendant produced a case summary which identified three issues (in summary):
i) Was Mr Slater bound by any agreement(s) with Mr Wimmer or Wide Eyed?
ii) If so what were the terms as regards ownership and licensing of copyright?
iii) How much footage had been used?
- There was a fourth issue concerning video equipment but that was dropped by the time the matter came to trial.
- The directions given at the CMC provided that the parties could serve witness statements dealing with the four issues but that cross-examination would be limited to issues (i) and (ii). In the end, by the time of the trial, issue (iii) was not in dispute anyway.
- The claimant served witness statements from himself, from Ian Bishop who was a minority shareholder in High & Wild (Mr Gifford being the majority shareholder) and from Leo Dickinson, a film director and cameraman.
- Mr Bishop was at the skydive in Nepal. His first witness statement states that there was a dispute between High & Wild and Mr Wimmer about paying for Mr Slater. He says Mr Gifford asked Mr Slater to pay but he had no money so he asked Mr Wimmer to pay but Mr Wimmer would not do so.
- Mr Dickinson's statement states that Mr Wimmer has used other people's copyright photographs and film footage without permission. He states that Mr Wimmer's Wimmer Space website has used a photograph taken by Mr Dickinson himself and despite having complained to Mr Wimmer, Mr Wimmer has neither taken down the photograph nor paid for it. Mr Dickinson obtained a judgment from Exeter County Court against High & Wild after its continued use of the same photograph. Mr Dickinson also asserts that Mr Wimmer has used other film footage without permission, of a New Zealand cameraperson.
- The defendant served witness statements from himself, Miss Basu-Barua, Mr Andreasen and Mr Gifford.
- Miss Basu-Barua gives evidence about what happened at the meetings she attended in the summer of 2008. I will return to that below.
- Mr Andreasen confirmed that he went on the trip on the basis Mr Wimmer explains, i.e. expenses paid by Mr Wimmer, no salary and IP belonging to Mr Wimmer. He says that the majority of Mr Slater's footage was of poor quality but that he did use two minutes thirteen seconds of the footage in the Wimmer over Everest film. He believed the copyright was owned by Mr Wimmer as he understood Mr Slater had attended on the same terms as himself but he does not purport to deal with the meetings in 2008 which he did not attend. He credited Mr Slater at the end of the film not because he thought Mr Slater owned any copyright but as a matter of courtesy. Neither party sought to make anything of this latter point.
- Mr Gifford's evidence relates to the trip from the point of view of High & Wild. He agrees that Mr Wimmer explained that he required ownership of the IP rights in the film Mr Wimmer wanted to make of his dive and the trip in general and Mr Gifford was happy with that. Mr Gifford disagrees with Mr Bishop's evidence about payment for Mr Slater, states that it is untrue and says that Mr Slater had been paid for. Mr Gifford raises an issue about whether Mr Slater had a permit to film in Nepal after Mr Wimmer had left. He says Mr Slater had no such permit and that his filming at that stage was illegal. Mr Gifford told him he had to stop filming and leave the drop zone.
- Mr Gifford also explained that Mr Slater had created a film about "Everest Skydiver 2008" which painted him and High & Wild in a poor light by suggesting the adventure was poorly run and managed. The film was posted on YouTube. Mr Gifford issued a libel claim against Mr Slater in the High Court but withdrew it in January 2011. He said the withdrawal was due to financial pressures.
- Shortly before trial the claimant produced further materials, including the following:
i) A second witness statement of Ian Bishop responding to Mr Gifford's evidence. This relates to Mr Gifford putting High & Wild into voluntary liquidation and asserting that the list of creditors produced in that process was not complete or correct. Mr Bishop also asserts that Mr Gifford has been in breach of his director's fiduciary duties. He says he has been questioned by and given evidence to the police to assist their investigations into Mr Gifford and High & Wild.
ii) A copy of a Nepalese film production permit which permits Mr Slater to film between 27th September and 10th October 2008.
iii) What I am told is a Nepalese arrest warrant issued for the arrest of Mr Gifford.
- At the trial I heard oral evidence from Mr Slater and Mr Wimmer and also from Mr Dickinson and Mr Gifford. Miss Basu-Barua lives in Washington DC and facilities were made available for her evidence to be given by video link.
- Miss Basu-Barua was an excellent witness and I am grateful to her for making herself available to give evidence. Her evidence was of considerable assistance. She attended the meeting on 1st September 2008.
- I do not doubt Mr Dickinson gave his evidence fairly from his point of view but he struck me as very bitter about the Everest sky dive, High & Wild and Mr Wimmer. I conclude that Mr Dickinson's evidence was not relevant. At best it could be said to support an assertion of a sort of propensity of Mr Wimmer's to use other people's copyright. I did not find that of assistance and I will not enter into that issue. Another element of Mr Dickinson's evidence is mentioned below.
- I have no reason to doubt the veracity of Mr Gifford's evidence but like Mr Dickinson, his evidence was irrelevant. This is not the place to decide about the finances of High & Wild, the allegedly libellous nature of Mr Slater's film, the arrest warrant nor the other matters relating to Mr Gifford. Mr Gifford did not believe that the film permit was genuine. He did not allege it had been forged by Mr Slater or with his knowledge but believed it had been created recently in Nepal by individuals there with an axe to grind. The only relevance of the film permit point is a second order dispute which goes to credibility. I decline to enter into that debate because it is fruitless and unnecessary to do so. I should say Mr Bishop did not give oral evidence because he lives in Australia.
- That leaves Mr Slater and Mr Wimmer. They are both rather headstrong characters convinced of the justice of their cause. In my judgment they were both entirely honest witnesses. Their evidence on various points cannot be reconciled but I am sure they were both trying their best to assist the court. The important issue on which they disagree was about what took place at the meeting on 1st September 2008. I will address that below. I have not found it necessary to embark on trying to unpick the rival arguments about what happened in Nepal. The disputes have no direct relevance to the issues. None of the arguments are capable of shedding useful light on what either gentleman says about the crucial meeting.
- If the filming permit is indeed a forgery then that would be a very serious matter but there was no suggestion that even if it is, that has a bearing on Mr Slater's truthfulness. The business of High & Wild's finances is irrelevant. Whichever side is right about the episode concerning Mr Slater's ticket home does not help me decide this case. The disputes about out of pocket expenses and video equipment are equally unhelpful.
- There was an arid argument before me about whether the skydive was truly the first and was truly over Everest at all. As to the former there had been test dives before Mr Wimmer's skydive and as to the latter, self evidently the divers did not try to land on top of the mountain. The argument was that they were too far to the side to be truly "over" the mountain even then. There was also an argument about the fact that Mr Wimmer's dive was a tandem dive, in other words he dived attached to a dive master. These arguments seemed to be intended to belittle Mr Wimmer. Even if I accept that the event was not as historic as Mr Wimmer's publicity material suggests, was not the first, was not quite over Everest and so on, none of this has anything to do with Mr Wimmer's credibility as a witness in this case. The arguments were based on Mr Dickinson's evidence and were picked up by Mr Slater. They were frankly silly and I will not engage with them any further.
Finding the primary facts
- The only matter of primary fact which I need to resolve is what happened at or after the meeting on 1st September. There are two questions: (1) was an agreement entered into? and (2) what did Mr Wimmer say about IP rights?
- The key agreement pleaded by Mr Wimmer is one between himself and Wide Eyed. Miss Basu-Barua was present at the meeting and wrote the emails afterwards. She was called as a witness by Mr Wimmer. She clearly had no axe to grind in this case. Her witness statement stated that Wide Eyed did not enter a formal contract with either Mr Wimmer or Mr Slater. Her clear oral testimony was that her company (Wide Eyed) did not enter into any contract at all at the meeting (or at any other stage). Mr Longstaff submitted that Miss Basu-Barua had made a mistake. I do not agree. I accept her evidence. I have also considered whether the fact that Wide Eyed supplied video equipment to Mr Slater makes any difference. I do not think it does. Wide Eyed was operating in the hope that something would come of the project but that is a long way from saying it was a party to a binding contract. I find there was no agreement (oral, written or part oral/part written) between Mr Wimmer and Wide Eyed. That disposes of the first question.
- The evidence on the second question is as follows. Mr Wimmer says he made it clear he would own the IP rights because that is and always has been his firm policy. Mr Wimmer gives an example of a photographer he approached who was not prepared to accept the term and therefore did not come. Mr Slater says Mr Wimmer did not mention ownership of IP rights and says that if Mr Wimmer had said that he would own them, Mr Slater would not have agreed to go. Miss Basu-Barua could not remember whether Mr Wimmer did or did not mention IP rights at the meeting.
- I accept Mr Wimmer's evidence that his firm policy is always that he will own the IP rights. I also accept that he made it clear to High & Wild, Wide Eyed and Chris Riley. However that all took place outside the 1st September meeting and it does not follow that Mr Wimmer's policy was explained to Mr Slater at any stage. Neither party called evidence from Mr Riley and I refuse to speculate about Mr Riley's position. There is no document showing that Mr Slater was told about Mr Wimmer's position on IP rights. The only vehicle through which that requirement could have been communicated to Mr Slater was the meeting.
- In my judgment it is more likely that Mr Wimmer did not explain his position on IP rights than that he did so. My reasons are these.
- First, the basis of Mr Wimmer's evidence that he stated his position on IP rights at this particular meeting is that this stance on IP rights is Mr Wimmer's invariable stance. He is sure he did so on this occasion because he always does. That is not quite the same as a clear, specific, recollection of actually making the point in the meeting. It is in effect an opinion – I did so because I must have done.
- Second I found Mr Slater's evidence that he would have objected had Mr Wimmer stated that he (Mr Wimmer) would own all the IP to be highly credible. I think if the matter had been raised by Mr Wimmer, Mr Slater would have objected in some way. If that had happened I believe Miss Basu-Barua would remember the conversation. That she does not remember the IP point being raised is therefore evidence that it was not raised.
- So I find that the matter of ownership by Mr Wimmer of IP rights in the footage shot by Mr Slater was not raised expressly at the 1st September meeting.
- I do not doubt that Mr Wimmer thought Mr Slater knew that Mr Wimmer intended to hold all the IP rights and I do not doubt that given that Mr Wimmer had made this clear to High & Wild, Wide Eyed and Mr Riley, he may have thought that was sufficient (if he considered the matter at all). However it seems to me that it was or should have been clear to Mr Wimmer by 20th September that he was proceeding in the absence of a concluded contract with Wide Eyed. Terms had been discussed but there was no agreement to them. He went ahead anyway and cannot now complain if he did not make his terms clear to all the parties who accompanied him.
Application of the law to the facts
- The finding that there was no agreement between Mr Wimmer and Wide Eyed undermines a key plank of Mr Wimmer's pleaded case, which is that the whole trip was governed by and subject to an agreement between himself and Wide Eyed. It was a plank in Mr Wimmer's case because Wide Eyed did know that Mr Wimmer intended to own all the IP rights. Thus many of the defendant's pleaded arguments involve trying to bind Mr Slater to that agreement since by doing so the defendant hoped to bind Mr Slater to an agreement with a term in it about IP. However I have rejected that case and the subsidiary points fall with it.
- There was an alternative argument that Wide Eyed acted as agent for Mr Slater. I reject that. The same finding I have made that Wide Eyed did not contract with Mr Wimmer applies here too. On the facts of this case, if they did not contract on their own behalf, they also did not contract on anyone else's behalf.
- Part of Mr Slater's case on ownership of copyright was to submit that since there was no contract, there was nothing to imply terms into and so he must win. However it is not that simple. My finding that there was no agreement between Mr Wimmer and Wide Eyed does not mean there was no agreement of any kind between Mr Wimmer and Mr Slater. There plainly was one. Mr Wimmer was offering to pay Mr Slater's expenses to come on the trip if in return Mr Slater shot the film footage. It does not matter whether agreement on this basis was reached at the meeting because on any view Mr Slater accepted that offer at least by conduct. Once he went on the trip he was obliged to shoot the footage and he did so.
- Even if there was a dispute about whether and to what extent Mr Slater's expenses were paid by Mr Wimmer, the promise to pay them would be good consideration. In my judgment a legal contract was formed between Mr Wimmer and Mr Slater. Mr Slater was obliged to use his skill as a camera man to shoot the footage. Mr Wimmer was obliged to pay for the trip. Despite the argument about whether Mr Wimmer paid everything Mr Slater says he owed, it is plain that Mr Slater's travel expenses were (substantially) met.
- So this is a case to which Lightman J's analysis is applicable. The copyright in question was brought into existence by a person pursuant to a contract with another. Lightman J referred to the contract as a contract for services as opposed to one of employment. Clearly Mr Slater was not being employed by Mr Wimmer and so a contract "for services" may be a fair description of the agreement but I do not believe the characterisation matters. Mr Slater was going to use his skill to create the footage, bringing the copyright into existence.
- Since I have found on balance that Mr Wimmer did not mention IP rights at the meeting, I find that this contract did not contain an express term addressing copyright. The question is whether and to what extent terms should be implied.
- There was an argument about whether the contract included terms about future payments and profit sharing. I find that there was no agreement about these matters. This argument was really part and parcel of the argument about a contract with Wide Eyed. Questions of future payments and profit sharing were discussed between the parties in general terms and if there had been an agreement with Wide Eyed then those are the sorts of terms which would have to have been nailed down. But there was no agreement with Wide Eyed and no meeting of minds about future payments. That is different from saying that the parties no doubt worked on the vague basis that if money was generated by the final films to be made after the trip and using the footage then some sort of sharing out might well happen but nothing was sufficiently certain to be binding.
- Before I go any further however it seems to me that I need to resolve Mr Wimmer's case that he was the principal director and/or producer of the film footage. Although the parties always put this point after the question of the terms of the agreement, it is logically a prior question. Before I can apply the law as to implied terms, I need to know where the ownership of the copyright would be absent any implied terms.
Producer or principal director?
- I will deal with the director question first. Although the term "producer" is a defined term in the 1988 Act, "director" is not. Neither side directed me to any authority under the 1988 Act on the point. Laddie Prescott & Vitoria 4th Ed (para 7.41) suggests that in most cases the principal director is likely to be the person who had creative control of the making of the film and cite some decisions from other European courts on the point. That seems to me to be correct.
- There was a little cross-examination about Mr Wimmer's involvement in the filming. I reject Mr Wimmer's argument that he was a director of the film footage shot by Mr Slater. He exercised no substantial creative control over Mr Slater's shooting of the film footage. It is clear that the person who decided what to film and how to do it was Mr Slater. It was Mr Slater who decided where to point the camera. There was no suggestion that anyone other than Mr Slater played a part in deciding the camera settings (aperture and so on) at any stage. In my judgment Mr Slater was the only director and was therefore the principal director under the Act.
- As I mentioned above, the term "producer" is defined by s178 as the person by whom the arrangements necessary for the making of the film are undertaken. Neither party cited any authorities on this question; however the matter arose in Century Communications v Mayfair Entertainment  EMLR 335, Beggars Banquet v Carlton Television  EMLR 349, and A & M Records v Collection International  EMLR 25.
- In the form which the 1988 Act took when Century Communications was decided, the author of a film was defined ultimately using the words now found in s178. There was no reference to a "producer". The current form of the Act arises from an amendment in 1996 to redefine the "author" by introducing the expression "the producer and the principal director" and then taking the definition which formerly applied to the author of a film and apply it to the producer. The upshot is that Century Communications bears directly on the question of the identity of the producer because it is concerned with the same definition.
- The question in Century Communications was which of companies C and E was the person by whom the arrangements necessary for the making of the film had been undertaken. E was a Hong Kong company and C was a Chinese company. The film was funded by E and C was to assist in filming. The producer of the film was E's president but note that at that time "producer" was not the word used in the relevant parts of the 1988 Act. The film had been made in China and all the work there had been controlled by C. C had engaged the director and actors. Sir Mervyn Davies rejected the submission that one must take account of the arrangements made during the shooting but not any preparatory arrangements or work done afterwards. He held that the arrangements for making the film were undertaken by E. There never would have been a film had E not initiated its making and organised the activity necessary for its making and paid for it. To achieve that E had to engage C but C made no arrangements, they simply helped E to make the film.
- The Beggars Banquet case was an interlocutory injunction application. It was decided when the 1988 Act was in the same form as it was in Century Communications. Warner J held that the arrangements necessary for the making of a film included the provision of finance but it was eminently arguable that the person who undertook those arrangements was the person who was directly responsible for paying production costs rather than the person, who could be a bank, from whom the person paying obtained the money.
- Warner J also held that neither of two earlier cases concerned with the same definition (person by whom the arrangements … etc.) provided more than limited guidance. They were In re F.G (Films) Limited  1 WLR 483 and Adventure Film Productions v Tully 8th October 1982 reported as  EMLR 375. I will not dwell on those earlier cases.
- The A & M Records case concerned a sound recording rather than a film but the same definition applies. The sound recording was of music to be used by the ice skaters Torvill and Dean both to skate to and then to sell to the public. The two possible persons to whom the definition might apply were R and P. Sir Mervyn Davies held that R had commissioned and paid for the musical arrangements, booked and paid for the recording studio, arranged, engaged and paid for 51 musicians, a sound engineer and a fixer and paid all the expenses. One could consider that R made the recording; however the learned judge held that P was the person who undertook the arrangements necessary for the making. When Torvill and Dean told P what they wanted, he sought and found R and agreed with him that R would set up a studio and musicians at R's expense in return for a fee that would enable R to make a profit. It was known what the recordings were to be used for.
- Clearly the question of who is the "person by whom the arrangements necessary for the making of the film are undertaken" is highly fact sensitive. Nonetheless there are points of principle that seem to me to follow from the cases I have cited. The definition does not simply refer to the person who made the film, it focuses on the person undertaking the necessary arrangements for doing so. So in A & M Records the person was P and not R and in Century Communications the person was E and not C. On the other hand one cannot go too far up the chain and away from the film making arrangements. The bank is not the person undertaking the necessary arrangements even if the money all came from a bank.
- In the case before me there are five conceivable candidates for the "producer" of Mr Slater's footage: High & Wild (and/or Mr Gifford himself as agent for High & Wild), Wide Eyed, Chris Riley, Mr Slater or Mr Wimmer. I have also considered whether there could be said to be no producer at all in this case, but that seems to me to be wrong.
- I can dismiss the idea that Mr Gifford (or High & Wild) was the producer. Mr Gifford and his company clearly organised the event but that is not the same thing as undertaking the filming arrangements. He made no claim to be a producer of the film. The original arrangement between Mr Wimmer and Mr Gifford in June 2008 shows that neither Mr Gifford nor his company were to undertaking the filming arrangements.
- If there had been an agreement with Wide Eyed to pursue the project then that company's role would very likely have included undertaking the arrangements necessary for making the film and in that event Wide Eyed could have turned out to be the producer, but there was no such agreement and the project did not work out like that. Although they did supply some video equipment to Mr Slater, Wide Eyed made no claim to be the producer of the footage. They cannot be said to be the producer of Mr Slater's film.
- Although Mr Riley obviously made some arrangements since he identified Mr Slater as a potential cameraman, it seems to me that the idea that Mr Riley is a producer stands or falls with the position of Wide Eyed. If there was no contract with Wide Eyed then there cannot have been one with Chris Riley. Without one I cannot see how Chris Riley could be said to be the person who undertook the arrangements necessary for the making of Mr Slater's footage.
- Mr Slater shot the footage but to say that Mr Slater was the person by whom the arrangements necessary for the making of the film were undertaken seems to me to be wrong. Mr Slater's filming only happened because Mr Wimmer decided to undertake the project and arrange for it to be filmed. Mr Wimmer did not just pay for the event, he also paid costs associated with making the film such as paying (at least most of) Mr Slater's travelling expenses. But Mr Wimmer was not merely the banker, the project was his project. The purpose was to create footage of the skydive over Everest. He had also made the arrangements whereby another cameraman, a still photographer and a cinematographer were engaged. He made the arrangements whereby Wide Eyed provided video equipment for Mr Slater. In my judgment Mr Wimmer has the best claim to be the person who undertook the arrangements necessary for the making of the film footage.
- Accordingly absent the effect of any implied term in the contract, by s10(1A) the contested footage is a work of joint authorship. The joint authors are Mr Slater as principal director and Mr Wimmer as producer.
The effect of the contract
- Is it necessary to imply any terms into the contract at all in these circumstances? In order to answer that question I need to consider the legal effect of my findings absent any implied terms.
- Section 10(3) provides that with a work of joint authorship, references in the Act to the author refer to all the authors and s173(2) makes a corresponding provision about joint owners. That means that any restricted act defined by s16 (such as reproducing the work) will be an infringement unless it is permitted by all the authors.
- Co-owners of copyright may assign their own interest (see Copinger 16th Ed paragraph 5-71). Usually co-owners will hold the copyright as tenants in common and usually the shares will be equal although both points are subject to the particular circumstances and to any agreement on the point.
- Thus, absent any implied terms, Mr Wimmer and Mr Slater would co-owners of the copyright in Mr Slater's film footage. Each needs the other's permission to reproduce the work. There is no reason as far as I am aware why they should be anything other than tenants in common with equal shares.
- On Mr Wimmer's behalf the reasons why a term should be implied whereby he owns the copyright outright (or at least has a licence from Mr Slater) are that the purpose was to create footage for his own use and to be used in two programmes, one for the Danish market and one for a wider market and Mr Wimmer was paying for the event and the filming. In order to fulfil that purpose Mr Wimmer says he needed to own the copyright. The programmes were to be created by knitting together Mr Slater's footage with other material such as the material shot by Mr Andreasen. Therefore this case is close to item 7(c) in Lightman J's analysis (see above). Lightman J referred to the case in which a contractor is engaged as part of a team with employees of the client to produce a composite of joint work and he would be unable or cannot have been intended to exploit for his own benefit the joint work or any distinct contribution of his own created in the course of the engagement. Of course none of the others engaged by Mr Wimmer were his employees but clearly Mr Wimmer had engaged other contractors on express terms about IP belonging to Mr Wimmer.
- The points on Mr Slater's behalf to the contrary are these. First he accepts he knew that the objective was to make footage for two programmes but he denies that it was agreed how the rights in these programmes would be arranged. In effect this is the nub of the dispute between Mr Slater and Mr Wimmer. From Mr Wimmer's point of view the two programmes were always going to belong to him and everything flows from that. However Mr Wimmer's viewpoint is always through the prism of his certainty that he is going to own all the IP, but I have found that he did not communicate that to Mr Slater at the relevant time. From Mr Slater's point of view, the programmes, especially the second one with a wider contemplated circulation, were going to be a joint effort with details to be sorted out in future if necessary.
- It seems to me that another important element is the money being paid. Mr Wimmer was paying for Mr Slater's expenses but Mr Wimmer was not paying a fee or salary to Mr Slater for his work. In terms of the contract which I have found to exist, Mr Slater received good consideration from Mr Wimmer in that he got to join an exciting adventure with his expenses paid but that is all. This is not a case in which Mr Slater was paid to create the footage. In that respect it seems to me to differ from the usual sort of commissioning case. Mr Slater also emphasised that he had to take three weeks leave from his regular job in a television production company in order to go on the expedition and thus lost significant personal income. He was not "engaged for reward" to produce material the subject of copyright (per Jacobs J in the citation quoted by Lightman J at his paragraph (8)). Mr Slater's reward (if any) was to come later.
- In my judgment it is not necessary to imply any terms into the agreement between Mr Wimmer and Mr Slater as far as the UK copyright is concerned. My reasons are these. It seems to me that the starting point is that Parliament has dealt expressly with the ownership of copyright in situations like this one in the 1988 Act. One way of characterising the agreement was that in effect Mr Wimmer would be the producer and Mr Slater the principal director of Mr Slater's footage. The 1988 Act provides that this makes each a joint author and therefore they are co-owners of the copyright. A contract between producer and director could contain express terms about ownership and they would take effect but there are none here. However to imply terms into such a contract without more seems to me to be entirely unnecessary when Parliament has provided for the consequences already.
- What else is there about the contract from which one might find it necessary to imply terms? The fact that the footage was to form part of a composite is indicative of a need for a degree of control by Mr Wimmer and on Mr Wimmer's behalf the point was emphasised that separate retention of IP rights by co-authors would make it impossible to sell the end product in a commercially realistic way. On the other hand the fact that Mr Slater was not being paid a fee or salary for his work as a cameraman is indicative of a need to retain a degree of control by Mr Slater. I do not regard the fact that he got to come on an adventure holiday as determinative. Mr Slater was using his skills and was not being paid for those skills. He was entitled to anticipate at least the prospect of a share of profits in the future. I can understand why the need to sell the end product could override other factors if the cameraman had been paid a fee for his work as a cameraman but that did not happen. It seems to me that the statutory result (co-ownership) gives each person the necessary control over the copyright since neither can exploit it without the consent of the other.
- A point emphasised by Mr Longstaff was the need for Mr Wimmer to have rights against third parties. Co-ownership of the copyright gives Mr Wimmer a right enforceable against third parties.
- It was also said to be unrealistic that Mr Wimmer would pay thousands of pounds for a cameraman to come on the expedition with no guarantee that he would be able to use the resulting footage, but that is to look at it only from Mr Wimmer's point of view. It is equally unrealistic to expect a skilled professional to use his skill without payment and without the ability to enforce a right to payment in the future.
- Does Mr Wimmer need at least a licence? I do not see why. If Mr Wimmer had a licence from Mr Slater then, subject to its terms, Mr Slater would lose control of his own footage. If the terms about future profits had been agreed then they might be incorporated into a licence but they were not.
- So far I have focussed expressly on the question of UK copyright. As I mentioned above the parties have argued this case entirely from the point of view of English law. However there will in fact be both UK and foreign copyrights in Mr Slater's footage. The foreign copyright will obviously include Danish copyright. Given that films are treated in a particular way under the 1988 Act, it does not necessarily follow that first ownership of the foreign copyrights relating to the film footage would, absent an agreement, fall in the same place as provided for under the 1988 Act.
- I have considered whether I should limit this judgment to UK copyright only. In my judgment I should not. The parties have argued this case entirely generally. For example neither side has pleaded a case which says in effect even if they lose the UK copyright, they still own the Danish rights. They have both approached this case on the basis that all copyrights are in issue and stand or fall together. If the parties had wished to take a territorial or jurisdictional point they could and should have done so much earlier. The English courts have jurisdiction to deal with questions relating to foreign copyrights (Lucasfilm v Ainsworth  UKSC 39). By the trial, both sides were professionally represented. I also bear in mind proportionality and cost. This is not a case about rights worth large sums of money. Quite the reverse. Accordingly it seems to me the right thing to do is decide the case on the evidence and submissions provided already.
- My conclusion that it is not necessary to imply terms into the agreement as far as the UK copyright is concerned does not mean the same result necessarily applies to foreign copyrights. That is because the reasoning about implied terms in this context necessarily depends on assessing what the position would be absent the implied term (see the first and third of Lightman J's general principles (cited above)).
- It seems to me that there are only two possible sensible outcomes, either (i) the contract has no implied terms in it at all and all the foreign rights lie whereever the local law places them absent a contract or (ii) necessity demands an implied term which treats all the rights in the same way and puts them in the same place.
- It seems to me that the same factors which I have addressed above support conclusion that the contract contains an implied term making the parties co-owners of all the copyrights. That is where the balance of the various factors comes out. There is no need to imply a term to that effect for the UK copyright because that is where the Act places the copyright anyway.
- I remind myself of Lord Bingham's warning that the court comes to the task with the benefit of hindsight and that it is tempting but wrong to then fashion a term which will reflect the merits of the situation as they can appear. In my view a finding that the contract necessarily must be said to contain a term by which all the copyrights in the same piece of footage fall to be held in the same way does not fall foul of the trap Lord Bingham was talking about. The factors I have considered lead naturally to that result.
- It might be said that this is a view of the contract unduly influenced by the UK's legislative approach to copyright. That may be so but I do not regard it as unreasonable since the meeting between Mr Wimmer and Mr Slater was in London, many of the arrangements were made in London and Mr Slater was a British cameraman because that was what Mr Wimmer looking for. It makes sense for the parties' legal relationship to be approached from that point of view.
- I find that the parties are co-owners of all the relevant copyrights. They have both reproduced the footage without the consent of the other. I will make declarations accordingly and I will hear the parties as to what further orders should be made.
- In paragraph 92 above I stated that Mr Slater accepts he knew that the objective was to make footage for two programmes, in other words the Danish one and the one with a wider circulation. Upon receipt of the draft judgment Mr Slater denied that he accepted that he knew about the Danish programme. He says that before the trip he only knew about the programme I have called the second, wider circulation programme. It is correct that in his first witness statement Mr Slater denies knowledge of the Danish programme but I must say my impression from the evidence and submissions at the trial itself was that Mr Slater accepted he was at least aware of the proposal for a Danish programme in advance of the trip. It seems to me that it does not matter whether Mr Slater was or was not aware of the Danish programme proposal. The point of importance from Mr Slater's point of view is that he accepts he knew that the objective was to make footage for at least one programme but that he denies it was agreed how the rights in that programme would be arranged. As far as he was concerned the second programme was going to be a joint effort with details to be sorted out in future if necessary. In the light of Mr Slater's comment after the draft judgment was circulated I will not make a finding about whether or not he knew about the Danish programme proposal. It does not make any difference.
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