|
Eric Swetsky's legal column published in Marketing Magazine, March 1999
|
While the Froth Settles Does an ad with a quirky jig break copyright law
The movie version of Roddy Doyle's novel, The Snapper, had a wonderful scene in which an overjoyed grandfather dashes into a pub in Ireland to toast the birth of his grandchild only to be anxiously delayed in his merriment while the froth settled on his pint of Guinness.
Never one to miss a beat, the advertising agency in Ireland responsible for the Guinness beer account wanted to create a TV ad based on that scene. The agency's art director remembered an unsolicited, self-promotional film he received from a Mr. Norowzian that contained a montage of Norowzian's work. One clip in the montage was without dialogue and titled, "Joy," in which a single actor danced to music on a roof top.
Joy received considerable critical acclaim. The striking feature of the film was the visual impact that resulted during editing in which Norowzian used "jump cutting" techniques. This involved excising pieces of the original film, so that the dancer appears to perform sequences without an interval, the successive movements of which would have been impossible for the dancer to perform. This gave the finished film a surreal effect.
The Guinness agency's art director titled his project, "Anticipation." He put together a script and storyboard for the proposed TV ad and presented it to their client, along with a copy of Joy. Guinness liked the idea and the agency asked Norowzian to direct the commercial. He refused, saying that all the agency wanted was a remake of Joy with a beer glass superimposed to represent the client's product, there being no creativity required on Norowzian's part.
The agency then approached another director, named Smyth. The agency showed Smyth a copy of Joy, and told him that they wanted a commercial "with an atmosphere broadly similar to that portrayed in Joy." They suggested jump cutting techniques, but that Smyth should create a new storyboard since their initial one was too close to Joy. The final version of Anticipation had no dialogue, and showed a pub patron performing a quirky dance to music while waiting for the effervescing foam to settle in his just-poured Guinness.
Smyth's commercial was such a success in Ireland, that Guinness used it in England. Around the same time, Norowzian sued in England's courts for the perceived infringement of the copyright he held in Joy.
Two types of copyright were involved in this case, the first being in the film itself. The second type of copyright was in the underlying dance or mime that was captured on film (in other words, the dance as a dance).
It was clear from the evidence that Smyth imitated and emulated Joy, but for an infringement of copyright to occur, the second work must be substantially similar to the first. There is no infringement of copyright if all that was taken from the original work were ideas that were expressed differently in the second work.
With respect to the first type of copyright, the judge said that while both films involved dancing, each had different storylines, Anticipation involved the wait for a beer's froth to settle, Joy involved a dance to life. The judge said what was more similar between the two films was the filming and editing styles, but concluded:
"I accept that…Smyth employed a style of film directing similar to that used…in Joy. I am satisfied that Joy provided (the Irish advertising agency) with an idea which was developed into Anticipation by Mr. Smyth by the use of similar filming techniques to those used by Mr. Norowzian in Joy. It seems to me clear that Joy was used…as a point of reference in the production of Anticipation. But, in my judgment, it is impossible to say that Anticipation reproduces a substantial part of the subject matter of Joy."
The judge then assessed whether there was an infringement of the second type of copyright, the copyright held by Norowzian in the underlying dramatic work captured on film in Joy, the dance as a dance. The judge concluded that Norowzian's dance was not a dramatic work at all and therefore it was not possible for anyone to infringe the copyright in it. The judge said that for a dance to be a dance, it must be capable of being performed and that "Joy, unlike some films, is not a recording of a (dance because of)…the drastic editing… It is not a recording of anything that was, or could be, performed or danced by anyone."
|
