Norowzian v Arks Ltd & Anor (No. 2)

A film can be a dramatic work under the Copyright, Designs and Patents Act 1988. The expression is not confined to works recorded from a pre-existing performance. It includes a work of action, with or without words or music, capable of being performed before an audience. The statutory categories of films and dramatic works may overlap.

Copyright protects an original work, not an artistic style or technical method. Similarity in filming or editing techniques, including jump-cutting, does not amount to copying a substantial part where the works’ subject matter and overall expression differ. An appellate court should be slow to interfere with a trial judge’s impression on substantial copying where no error of principle is shown.

Mehdi Norowzian appealed from the dismissal of his copyright claim against Arks Ltd and Guinness Brewing Worldwide Ltd. His claims against Guinness Plc and for passing off had been abandoned. Mr Justice Rattee’s judgment, delivered on 17 July 1998 and reported at [1999] EMLR 67, held that a film could not itself be a dramatic work, although it could record one, and rejected the claim on copying.

The claimant’s film Joy used jump-cut editing to depict a dancer. The defendants’ Guinness advertisement, Anticipation, used a similar technique in a different setting and with different subject matter. The appeal concerned whether Joy was a dramatic work and whether Anticipation copied a substantial part of it.

The Court of Appeal dismissed the appeal. Lord Justice Nourse gave the principal judgment. Lord Justice Brooke agreed with his reasons and also with Lord Justice Buxton’s general observations. Lord Justice Buxton agreed in the result and made additional observations on the statutory treatment of films.

1. Meaning of dramatic work. A film can be a dramatic work under the Copyright, Designs and Patents Act 1988. The definition is at large and should receive its natural and ordinary meaning. A dramatic work is a work of action, with or without words or music, capable of being performed before an audience. The categories in section 1(1)(a) and section 1(1)(b) are not mutually exclusive.
2. Application to the film. Joy was an original dramatic work. It was not, however, a recording of a separate dramatic work because the editing meant that the finished film did not record anything that had been, or could have been, performed in that form.
3. Substantial copying. The defendants had not copied a substantial part of Joy within section 16(1) and section 16(3)(a). Copyright did not subsist in mere style or technique. The similarity in jump-cutting and filming methods was insufficient because the two films had materially different subject matter and expression.
4. Appellate restraint. Whether a substantial part has been copied is a question of fact and degree involving impression. The appellate court should not reverse the trial judge merely because it might form a different impression, particularly where no error of principle is identified. On the evidence and its own viewing of the films, the Court agreed with the judge’s conclusion.
5. The order was that the appeal be dismissed with costs against the first defendant, and with costs against the second and third defendants up to and including 22 January 1999, with no later costs awarded to them.

• Court of Appeal (Civil Division): appeal dismissed from the decision of Mr Justice Rattee.
• High Court, Chancery Division: copyright claim dismissed; judgment reported at [1999] EMLR 67.