No joy for director in Guinness case

A recent High Court ruling could reduce the copyright protection available to makers of films and videos, writes Roger Pearson. THE high Court decision by Mr Justice Rattee in the case of Norowzian v Arks and ors is seen as being of major importance to the film and advertising industries and has sent ripples across the Atlantic in intellectual property circles.

The case centred on copyright in respect of a film sequence used in an advertisement for Guinness. The plaintiff was Mehdi Norowzian, a film-maker. The defendants were advertising company Arks and Guinness Brewing Worldwide.

Norowzian produced a film called Joy, in which he had edited film of a man dancing in such a way that the dance sequence would have been physically impossible. The film utilised a technique called "jump cutting" to achieve this effect.

He sent the film to Arks, which decided it wanted to make an advertisement for Guinness based around it, and asked Norowzian to direct the advert.

Norowzian refused, and Arks made the advert using a different director, actor and storyboard. However, extensive use was made of jump cutting and other techniques used by Norowzian.

In a case which raised the question of whether the provisions of the Copyright, Designs and Patents Act 1998 gave protection to work such as Norowzian's, it was argued that the original film was to be classed as a dramatic work and that Arks' advertisement film, Anticipation, represented a substantial copy of it.

The judge dismissed the claim on the basis that he did not believe Norowzian's film could be classed as a dramatic work.

He said he accepted that if the finished film had been a recording of a dance routine performed by the actor in front of the camera it might well have been considered as such.

But he took the view that the finished effect was the result of editing techniques used after shooting of the film.

The work was not a recording of anything that was, or could, be performed or danced, and he accepted arguments by Arks that to be a dramatic work a work had to be, or be capable of being, physically performed.

Appeal moves are under way, but if the ruling stands then IP specialist Margaret Briffa of London-based Briffa & Co, who represented the plaintiff in the case, believes it is bad news for both industries.

She says that both industries, in the US and UK, have followed the progress of the case with interest, and believes the judgment will lead to the exclusion of a highly skilled art form from copyright protection.

Briffa says that in the long term such a result is of benefit to no-one. "The decision has thrown up as many questions as it has answered," she says.

Briffa says this is the first time that the courts have considered whether copyright protection can be applied to a film editing process. She says that the effect of the ruling is to leave directors without copyright protection for the work that makes their talents a saleable commodity. She says that it "will deal a major blow to advertising agencies, film directors and all involved in film and video work".

"This decision is going to have a massive impact. It is a ruling that is being studied not just in this country but on the other side of the Atlantic as well. It has worried a lot of people and we consider it has watered down the protection given by the 1998 Act."