A judgment given in the case brought by Mehdi Norowzian against Arks Advertising and its clients is an important victory for advertising agencies and their ability to use artists' ideas as inspiration.
Norowzian took action for copyright infringement of his short film Joy. He had used various editing techniques including jump cutting so that Joy consisted of a man dancing jerkily to music.
Arks accepted that they had seen Joy before producing the Guinness advert Anticipation, which also portrayed a man performing a series of jerky dancing movements while waiting for a pint of Guinness to settle.
Firstly, Mr Justice Rattee distinguished between the copyright subsisting in the film on which Joy was recorded, which was not directly copied (since no single frame was copied), and Joy, the underlying work embodied on that film. With respect to the latter it was held that it was not a dramatic work and copyright did not subsist because the dance shown in Joy was not capable of performance by a dancer because of the editing techniques used.
Secondly, even if copyright did subsist in Joy it was held that the defendant had not taken a substantial part of the work and therefore had not infringed the copyright. The defendant had merely used the plaintiff's idea of using jump cutting techniques to produce a man dancing quirkily to music.
The judgment confirms that agencies can use artists' ideas or the format of a work without infringing copyright, and that there is no copyright in an idea – only in the embodiment of that idea. To avoid infringement actions, it is common practice for agencies to pay money for use of an idea or a format. The case is also a reminder to artists to disclose their work to advertising agencies under strict terms of confidentiality.
Many now believe that there should be a change to UK law to introduce a specific "format" right. Such a right was previously considered and dropped by the UK Government.