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Law Notes Intellectual Property 1 (Copyright) Notes

Dramatic Musical And Artistic Works Notes

Updated Dramatic Musical And Artistic Works Notes

Intellectual Property 1 (Copyright) Notes

Intellectual Property 1 (Copyright)

Approximately 262 pages

Detailed cases and materials summary which were instrumental in securing top of subject in 2012. Structure of notes:

Class 1: introduction to Copyright: History, Basic Principles and Subsistence
Class 2: Subsistence Continued; Literary Works
Class 3: Dramatic, Musical and Artistic Works
Class 4: Subject matter other than works
Class 5: Ownership, Duration and Exploitation
Class 6: Direct Infringement
Class 7: Authorisation of Infringement; Indirect Infringement; Paracopyright
Class 8: E...

The following is a more accessible plain text extract of the PDF sample above, taken from our Intellectual Property 1 (Copyright) Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Dramatic, Musical and Artistic Works

Dramatic Works

S 10(1) provides:

‘dramatic work’ includes

  1. A choreographic show or other dumb show; and

  2. A scenario or script for a cinematograph film

but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film

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,...

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