As promised, we return to this outcome of this case. Charles Swan considers the decision, the reasoning behind it and what it means for copyright law.
Mehdi Norowzian has failed in his claim that a Guinness commercial produced by the Arks agency infringed his copyright in a film on his show reel.
Norowzian’s film, ‘Joy’, showed a man dancing to music in front of a canvas sheet. The film relied on an editing process known as ‘jump cutting’ in which pieces of the original film were cut within a sequence of movements by the dancer. In the final edited version of the film the dancer appears to have performed successively, without an interval, two movements that in reality could not have immediately succeeded each other. The end result was described in court as a surreal effect.
The Guinness commercial portrayed a man who, having been served by a barman with a pint of Guinness, waits for the frothing liquid in his glass to settle and, while he waits, carries out a series of dancing movements. A similar jump cutting technique was used, with the similar result that the dancing man appears to indulge in a series of jerky movements that could not be achieved by a dancer in reality.
Norowzian’s claimed infringement of two copyrights, the copyright in his film and the separate copyright in the dramatic work which (he claimed) the film depicted. His claims failed because:
Infringement of film copyright requires a copying of the actual film. Copying of the subject matter of the film is not enough. Arks had not copied any actual frames of ‘Joy’.
A dance routine can be protected as a dramatic work if it is recorded on film. The film Norowzian originally shot of the man dancing may therefore have depicted a copyright dramatic work. But the edited version was not a dramatic work because it was a physical impossibility and could not have been performed by any human performer. It was therefore not subject to copyright protection.
The decision has been summarised as stating that content rather than style is what copyright will protect in a film. This is in line with general copyright principles, though the distinction between style and content is often blurred. Despite criticism of the decision from some parts of the industry, Norowzian’s prospects on appeal must therefore be limited.
Warning: you don’t infringe copyright in a film unless you copy the actual film, but the same principle is unlikely to apply to photographs. Although the point has yet to be finally resolved, it seems likely that you can infringe the copyright in a photograph if you shoot another photograph which reproduces a substantial part of whatever is original about the first photograph.