Norowzian v Arks Ltd & Anor

A film may itself be a dramatic work under the Copyright, Designs and Patents Act 1988 if it is a work of action capable of performance before an audience. It need not also be a recording of a separately existing dramatic work.

Copyright does not subsist in a mere style or technique. Accordingly, striking similarities in filming or editing techniques do not establish copying of a substantial part where the films’ subject matter and original content are materially different.

The claimant made the short film Joy, featuring a dancer and extensive jump-cut editing. The defendants later made a Guinness advertisement, Anticipation, which also used jump-cut editing to depict a dancing drinker awaiting his pint.

Rattee J dismissed the claimant’s copyright claim in the Chancery Division, holding that a film could not itself be a dramatic work and that, in any event, no substantial part of Joy had been copied: [1999] EMLR 67. The claimant appealed.

The central issues were whether Joy could be a dramatic work under the Copyright, Designs and Patents Act 1988, and whether Anticipation copied a substantial part of it.

1. The appeal was dismissed. Nourse LJ, with whom Brooke LJ agreed, held that the judge was wrong to state broadly that a film could never be a dramatic work. The statutory definition was not exhaustive. A dramatic work was a work of action, with or without words or music, capable of being performed before an audience. A film could therefore fall within section 1(1)(a) of the Copyright, Designs and Patents Act 1988.

2. The statutory categories did not exclude overlap. A film might be both a recording of a dramatic work and a dramatic work in itself. Conversely, it might be neither a recording of a dramatic work nor a dramatic work. The finished film Joy was not a recording of a separately performable work because its radical editing meant that it did not record anything that had, or could have, been performed. It was nevertheless an original dramatic work in its own right.

3. The decisive issue was substantial copying. The court agreed with Rattee J that the films did not share protected material to a substantial extent. Their apparent resemblance lay in filming and editing style, particularly jump-cutting. No copyright subsists in mere style or technique. The subject matter, content and significance of the two films were materially different.

4. Nourse LJ accepted the general appellate restraint identified in Pro Sieben Media AG v Carlton UK Television Ltd [1999] FSR 618-619: absent an error of principle, an appellate court should be slow to substitute its impression on a factual question of degree. That principle was unnecessary to the result because the absence of substantial copying was plain on the court’s own repeated viewing of the films.

5. Buxton LJ agreed that the judge’s broad exclusion of films was wrong. In additional observations, he considered that original cinematographic works must also be accommodated within the statutory category of dramatic works so that the Act accords with the Berne Convention. The appeal was dismissed with the costs orders stated in the order.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal, while rejecting the lower court’s broad conclusion that a film could not itself be a dramatic work: [1999] EWCA Civ 3018.

• High Court, Chancery Division (Rattee J): dismissed the copyright claim after trial: [1999] EMLR 67.