Per Wimmer wanted to be the first person to take part in a tandem skydive over Everest and wanted to film the skydive. Stephen Slater joined the project as a cameraman on the basis that Wimmer would cover his travel costs but Slater would not be paid any fee. No written agreement was entered into. There was no express term addressing copyright.
Wimmer used some of the footage shot by Slater in a programme broadcast on Danish television. Slater claimed infringement of copyright. Wimmer counterclaimed for infringement by Slater, who had posted some of his footage on YouTube.
The first owner of copyright in a work is the author (unless the author is an employee). In the case of a film, the author is taken to be the producer and the principal director, unless the producer and the principal director are the same person. The Copyright Act defines the producer as the person by whom the arrangements necessary for the making of the film are undertaken. The term director is not defined in the Act. In most cases the principal director is likely to be the person who had creative control of the making of the film.
The “person by whom the arrangements necessary for the making of the film are undertaken” is highly fact sensitive. Where the film is funded by A and B assists in filming (for example, by running the shoot and engaging the director, crew and actors), A will be the producer where there would not have been a film had A not initiated its making and organised the activity necessary for its making and paid for it. A may not have had the knowledge or ability to make the film without B’s assistance, but B would not have made the film unless B had been engaged to do so by A.
The arrangements necessary for the making of a film include the provision of finance but the person who undertakes those arrangements is the person who is directly responsible for paying production costs rather than the entity, who could be a bank, a broadcaster or an advertiser, from whom that person obtains the money. Even if it provides all of the money, that entity is not the person undertaking the necessary arrangements.
The Patents County Court held that Slater shot the footage but Wimmer was the person by whom the arrangements necessary for the making of the film were undertaken. Slater’s filming only happened because Wimmer decided to undertake the project and arrange for it to be filmed. Wimmer did not just pay for the event, he also paid costs associated with making the film such as paying Slater’s travel expenses. But Wimmer was not merely the banker, the project was his project. He had also made the arrangements whereby another cameraman, a still photographer and a cinematographer were engaged.
The contested footage was a work of joint authorship. The joint authors were Slater as principal director and Wimmer as producer.
Any restricted act (such as reproducing the work) will be an infringement unless it is permitted by all the authors. Each of Slater and Wimmer had reproduced the footage without the consent of the other and had therefore each infringed the other’s copyright.
- A film is a work of joint ownership. All joint owners must consent to any exploitation of the film. For practical reasons, it makes sense for one person to have control of the exploitation of the film. That person will need written authority from the joint owners, whether by way of assignment or licence of their interests in the copyright or by way of an appointment as the agent for all of the joint owners.
- A written agreement between the producer and the director dealing with the assignment or licence of copyright could help avoid costly and time consuming litigation.
- A production services company may not have any interest in the finished film (as it would not be the producer within the meaning of the Copyright Act), but it may be entitled to copyright in some of the constituent parts. The commissioning entity should therefore ensure that the production services company assigns all of its copyright interests in the products of its services and, to avoid any arguments, in the finished film.
- Photographers should bear in mind that where they shoot video as well as still photos, the rules on first ownership of copyright applying to video are different from those applying to still photos.