#7331 - Dramatic Musical And Artistic Works - Intellectual Property 1 (Copyright)

Green v Broadcasting Corp of NZ [1989] RPC 700

Lord Bridge of Harwich noted that the dispute essentially involved the broadcast of a show which was similar to an earlier show broadcast for some 22 years in England (‘Opportunity Knocks’). The show was a talent quest of sorts. Two elements of copyright were alleged to be infringed – the scripts and the dramatic format

The scripts

• There were a number of issues that existed regarding the evidence as to the nature of the scripts – there was some evidence in EIC concerning stock-phrases and in XE starting the beginning and end of the show called ‘make your mind up time’

• His Lordship agreed with the TJ that this evidence didn’t do more than express a general idea or concept for a talent quest and thus were not the subject of CR

Dramatic Format

These features were alleged to be the title, catchphrases, the use of a device called a ‘clapometer’ to measure audience reaction to competitors’ performance and the use of sponsors to introduce competitors

• It is stretching the word ‘format’ to use to describe the features of a TV talent show presented in a particular way, with repeated but unconnected use of set phrases with the aid of particular accessories

• Alternative terms like ‘structure’ or ‘package’ were used in argument – the difficulty in finding a label for the ‘work’ in which the CR subsists reflects the difficulty of the concept that these features can be isolated from the changing material presented in each separate performance of the show, and thereby identified as a ‘dramatic work’

• The protection that CR gives creates a monopoly and there must be certainty in the s.m. of such monopoly in order to avoid injustice to the rest of the world

• The s.m. claimed for the ‘dramatic format’ of ‘Opportunity Knocks is conspicuously lacking in certainty

• Further, a dramatic work has to have sufficient unity to be capable of performance – here what was described as the ‘format’, being unrelated to each other except as accessories used in presentation of a different dramatic work, lack that characteristic

Appeal dismissed

Nine Films & Television Pty Ltd v Ninox Television [2005] FCA 1404

Facts: Dream Home was a successful NZ reality program – an interest in exploiting it overseas led to grants for exploitation being made in favour of Nine and the broadcast of AU Dream Home. Later, Nine made and produced two series of a TV show called The Block which Ninox alleged reproduced a substantial part of the dramatic work of Dream Home in a material form, without their license, thereby infringing CR. The essential elements of each work were set out on pp 112 and 113. Nine alleged certain key differences between the two works, in particular, differences in:

• Structure and elements

• The rules of the program

• The overall tone, quality, sound and appearance and their distinctive ‘look and feel; and most importantly

• The degree and form of the dramas and tensions which develop in the block

Tamberlin J:

Principles

His honour cited Zeccola v Universal

• Facts: That case involved an allegation of infringement by the appellants’ film (Great White) of the respondent’s CR in a novel/screenplay/film called Jaws.

• Lockhart and Fitzgerald JJ said:

  • In general there is no CR in a central idea/theme of a story or play, however original

    • CR subsists in the combinations of situations, events and scenes which constitute the particular expression of the idea or theme. If these are totally different, the taking of the idea/theme doesn’t constitute CRI

  • Necessarily, events, incidents or characters are found in many books/plays

    • Originality when dealing with incidents/characters familiar in life/fiction lies in association, grouping and arrangement of those incidents and characters in such a manner that presents a new concept or novel arrangement of them

    • Where a story is based on various incidents which are commonplace, CR must be confined closely to the story that has been composed by the author

      • An author who materially varies the incidents/characters and materially changes the story will not be a CRI

    • If a literary or dramatic work isn't wholly original, there is no CR in the unoriginal part

  • The two questions involved in resolving the major issue are: the degree of objective similarity between the works and whether copying is established

    • The latter question involves considering the inspiration for, and derivation of, the format and production of the alleged infringing film/dramatic work

And also cited Tate v Fullbrook

• Vaughan Wiliams LJ:

  • One ought to take the words of the first pieces as presented with all its dramatic surroundings and compare them with the words of the alleged pirated piece

  • You don’t take the words of the pirated piece by themselves but with the stage situations and scenic effects by which they were accompanied – and then ask oneself, taking the whole of each piece together, whether there is such a similarity between the two works as a whole that there is an infringement in the proprietary right of representation in the first

• Also, CR in a written story gives protection not just to the words but can take into account the expression of themes and ideas embedded in the production if they are sufficiently substantial

Reproduction of a substantial part

• The mere fact that the events and dialogue of each episode are largely unscripted and unanticipated by the markers of each series means there cannot be a substantial reproduction

• [Objective Similarity] Further, looking at the overall content of each show, the characteristics of The Block are in sharp contrast to that of Dream Home – having regard to the technique, context, character of contestants, mood, music, image, style and basic theme content the two productions are a long way apart

• An important point of contrast between the two is that DH can be described as a ‘DIY infotainment program’ whereas The Block focusses on dramatic conflicts, glamour/trendiness of the couples etc. The objectives and interests of the audience watching the two would be completely different.

• His Honour was not persuaded there was any substantial reproduction or similarity

CBS Records Australia v Gross (1989) 15 IPR 385

Facts: In the 70s Anita Ward released a song called ‘Ring My Bell’ – CBS had CR in this work. In 1988, Collette, an aspiring singer, contacted Guy (experienced in writing/composition) to collaborate with her on songs. They recorded songs, including a cover of ‘Ring My Bell’ for which Collette sang the vocals and Guy produced the instrumental parts with a synthesiser. Subsequently, Colette made available to CBS a copy of a tape (the Trackdown Tape) including a version of Ring My Bell. CBS offered her a contract to sing a version of Ring My Bell and she accepted it.

Guy alleged that the Trackdown version was an original work in which CR subsisted and he was the author of, and, that CBS infringed it by taking, copying and performing a substantial part of it.

Davies J

• For CR in an arrangement to subsist, the differences from the work arranged must be such that a new original work can be identified

  • Differences resulting from mere interpretation (e.g. changing a song to suit the qualities of a singer’s voice) do not result in the creation of an original work – especially with pop music where the latitude given to a performer is greater than with classical works

• If an arrangement is copied/imitated closely by another performer, a conclusion can be drawn that: there is CR in the new arrangement [since prima facie what is worth copying is worth protecting] and that it has been infringed [since the whole of the arrangement has been taken].

• Here the vocal part of the song was narrowed from a range of 23 semitones to 10 – but given that Collette had a limited vocal range this is generally what would happen. This step by itself would simply be an interpretation of an existing work

• Originality, however, was not claimed in the vocal part of the Trackdown version but instead the instrumental backing which were completely different to the Ward verison

  • Reasoning on this argument:

    • The Trackdown version is the product of sufficient original skill/labour to sustain CR

    • It isn't just a copy – independent judgment applied to its creation and original composition was required for the development of the instrumental backing to reflect principal elements of the Ward version but to match the backing with Collette’s singing

• But this isn't a case where a particular feature stands out

  • CR doesn’t subsist in having a singer of Collette’s style perform the song – her song wasn’t so unusual to make its mere use an original music work

  • Nor does it lie in the development of a present day sound rather than Ward’s ‘funky’ ambience as this is generally what modern singers would claim to od

  • The originality lies in a myriad of differences rather than a specific feature, and therefore in the performance as a whole and not any special feature of it

• CR was claimed in the Trackdown version – but Guy alone didn’t work on it. He worked with Collette and a number of others – he was at most a joint proprietor

• CBS didn’t infringe CR...