#3607 - Justifications, Copyright 1 (Subsistence) Cases - Intellectual Property Law

JUSTIFICATIONS, COPYRIGHT 1 (SUBSISTENCE)

Subsistence of Copyright

Literary Work

New Technology

Nova Productions v Mazooma Games [2006] (Chancery Court)

C, a games manufacturer, had copyright in a computer game based upon pool. Alleged that D had infringed this copyright through the development of its own games, in form of:

1. literary works (the original game designer’s notes and program he wrote to develop the game; and

2. dramatic works (the visual experience provided by the game).

3. artistic works (the bitmap graphics and frames generated and displayed to the user); was alleged that the combined effect of a number of freeze frame graphics was mimicked in the later game, and that this effect constituted an artistic work. Held:

Chancery Court

1. Source code for producing a game constitutes a literary work.

2. The game itself is not a dramatic work

1. Is not intended to be performed in front of an audience

• Rather, what happens in the game depends upon the player’s actions

2. The features of the game alleged to be copied are also not capable of performance

CofA

3. The series of still images do not constitute a graphic work.

• Only one still image alone can constitute a graphic work.

• Hence a series of static images cannot constitute a graphic work (and therefore an artistic work).

• Parliament obviously created copyright for moving images under the notion of copyright in film in CDPA 1988.

Requirements

University of London Press v University Tutorial Press [1916]

Issue was whether mathematical examination papers were ‘literary works’. Held:

• Style/level of quality of creation is irrelevant to whether it is literary work.

• Thus aesthetic or qualitative judgments should not be made when identifying whether something is literary work

• Thus a mathematical exam paper is capable of being literary work.

Exxon v Exxon Insurance [1982]

C expended considerable research and effort coming up with name ‘Exxon’ for its corporate group. C sued D, who used word Exxon in their company name. Issue was whether word Exxon was a ‘literary work’. Held:

• A single invented word alone and by itself IS NOT a ‘literary work’

• For such a word to be literary work, would have to have qualities and characteristics in itself

• Rather than only having a meaning when accompanied by other words

• This unlikely to be possible in practice

• Fact that research went into its creation irrelevant

Infopaq International [2009] (ECJ)

NLA v Meltwater [2010] (UK Case)

Dramatic Work

Tate v Fulbrook [1908]

• For copyright to subsist there must be certainty in the subject-matter of the copyright.

Norowzian v Arks Ltd (No.2) [2000]

C produced a film using editing technique called ‘jump cutting’, whereby film reels were spliced together to make a dancer perform moves that could not in reality follow on from one another. C sent film to D, an advertising agency, who then produced their own film using the same cinematographic technique (although with a different dancer and on substantially different subject matter). This film was used in advertisement by Guinness. C sued D for breach of copyright.

Was held at first instance that a film could not be ‘dramatic work’ as it was not capable of physical performance. This definition rejected by CofA, who held:

• Dramatic work is any work of action capable of being performed before an audience

• Thus no need for work to be capable of physical performance

• Therefore a film is capable of being a dramatic work as per CDPA 1988 s.1.

• i.e. provided it is capable of being played in front of an audience

• which will ‘often be the case’

• Thus on facts:

1. Dance itself did not constitute a ‘dramatic work’

• i.e. because it was constructed from jump-cutting, was not capable of performance

• impossible for any dancer to recreate what the dancer in film was doing

2. Film did constitute a ‘dramatic work’

• However on facts, was no infringement.

Green v Broadcasting Corporation of New Zealand [1989] (Privy Council)

C was presenter and author of highly successful UK television show called “Opportunity Knocks”. Show was a talent contest, and had several memorable catchphrases and gimmicks. D broadcast a similar show with same name in New Zealand. C argued that copyright subsisted in the dramatic format of the show, and therefore show was protected as a ‘dramatic work’. Held:

• No copyright subsists:

1. Subject matter of copyright claimed for the ‘dramatic format’ is too uncertain.

2. In addition the features alleged to constitute ‘dramatic format’ of show are not capable of performance

• They are unrelated to each other except as accessories in presentation of some other dramatic or musical performance (e.g. a song or act)

• Thus appears from this case that no copyright can subsist in a TV format.

Musical Work

Coffey v Warner [2005]

C sued D, Warner Bros, for breach of copyright; alleged that a song co-written by Madonna was an infringement of C’s musical copyright, a song called ‘Forever After’. In C’s claim of particulars, however, C defined the ‘musical work’ infringed as the vocal expression, syncopation and pitch contour around the vocal hook “does it really matter” – rather than the actual song ‘Forever After’ itself. Held:

• Performer’s interpretation of music or personal performance characteristics do not constitute a ‘musical work’

• thus things not capable of being ‘musical works’ include the performer’s:

• voice expression

• pitch contour

• syncopation the hook “does it really matter”

Separability

• Whether something is a ‘work’ matter for objective determination by the court.

• In this case, C could not simply select parts of her song most similar to Madonna’s and use them as basis for her copyright work.

• i.e. by removing the rest of song (which was obviously not copied), was danger of creating an illusion of copying in the parts that remained.

• In addition the three features identified by C were not sufficiently separable from rest of song to constitute musical work in their own right.

Sawkins v Hyperion [2005]

C, a musicologist, did research into the out of copyright music of a French composer from 1600s, Lalande. C had found the music, made corrections and additions to pieces to make them playable, amended bass lines and corrected wrong notes. D, Hyperion, released an album upon which recordings of Lalande’s work based upon C’s scores had been made. D paid C a fee for providing the scores, but refused to pay royalties on grounds that an editor had not created a ‘musical work’. Held:

First line of reasoning

• Subsistence of copyright requires an assessment of the whole of work over which copyright is claimed.

• ‘Musical works’ includes not only the music, but any other elements which contribute towards sound of music when played

• Thus the tempos, performing indications could be covered by musical copyright.

• Provided they are a product of C’s ‘effort and skill’

Artistic Work

Nova Productions v Mazooma Games [2006] (Court of Appeal)

• See above for decision in relation to graphic works.

Sculpture

Lucasfilm v Ainsworth [2009] (Court of Appeal)

• A stormtrooper toy is not a sculpture.

• This because it is designed to be played with

• and NOT appreciated in its own right.

Lucasfilm v Ainsworth [2011] (Supreme Court)

D had manufactured helmets for use in the Star Wars films, and some years later had made helmets for general sale in England and the US. C, the companies owned by George Lucas, alleged this act of sale was an infringement of C’s copyright in respect of the helmets; C claimed the helmets were ‘sculptures’, and therefore fell under CDPA 1988 s.4. Held by Supreme Court:

Lord Walker and Collins

• Where function of the object is primarily utilitarian, is not sculpture.

• However mere fact that something has utilitarian purpose does not prevent it being sculpture if its primary purpose is artistic.

• A stormtroopers’ helmet is utilitarian

• This because it was made entirely in order to fulfil a purpose within a film.

• i.e. it was simply a prop...