Question 2 2022 Zone B

Ahmad has made a short, low budget film, SeaWorld, which is intended to explore the
influence of the sea on the life of the United Kingdom. It is predominantly a
monochrome work and was made without actors. Ahmad shot many hours of footage
of unscripted conversations between residents of various seaside towns and selected
extracts for inclusion in the final version of the film.
These extracts were combined with documentary footage of seaside life, against a
soundtrack of Ahmad playing his own music on the piano. The film has a melancholy,
poetic beauty and has won several awards. Ahmad meets his best friend, Balthazar,
every week for a coffee and a chat, and has done so for many years. It was on one of
these occasions that Balthazar came up with the idea for the film. At subsequent
meetings for coffee, Ahmad and Balthazar often discussed progress on the film.
Balthazar suggested that Ahmad should use his own piano-playing for the soundtrack
and, on one occasion, Balthazar even accompanied Ahmad to the seaside to discuss
potential shots for the film. When SeaWorld was completed, Ahmad said to Balthazar,
‘I’m really grateful for all of your help with the film. I’m going to take you out for dinner
as a thank you.
’ Consider whether any ‘works’ protected under the Copyright, Designs and Patents
Act 1988 arise on the above facts. If they do, who will be the owner of the copyright in
those works?

Answer Guideline
Categories of Copyright
 There are several works here that has to be considered under the categories
of copyright
(i) The low budget film
(ii) Conversation between the residents
(iii) Soundtrack of Ahmad playing his own music
(iv) The combination of the sound track, documentary footage and the
conversation with residents.
 CDPA 1988 has 8 categories of works protected prima facie by copyright law:
(1) Literary Works
(2) Dramatic Works
(3) Musical Works
(4) Artistic Works
(5) Films
(6) Sound
(7) Recordings
(8) Broadcasts
(9) Published Editions (Typographical works)
 Section 1(1) of CDPA 1988:
(1) Copyright is a property right which subsists in accordance with this Part in the following
descriptions of work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and
(c) the typographical arrangement of published editions
 The low budget film
Section 1(1) CDPA 1988
(b) sound recordings, films or broadcasts; and
(c) typographical arrangement of published editions.
Section 5(1) – “sound recording” means:
(a) a recording of sounds, from which the sounds may be reproduced; or
(b) a recording of the whole or any part of a literary, dramatic or
musical work, from which sounds reproducing the work or part may be
produced regardless of the medium on which the recording is made or
the method by which the sounds are reproduced or produced;
“film” means a recording on any medium from which a moving image
may by any means be reproduced.
On the fact, the low budget documentary called SeaWorld will be
protected as a film since it is a recording on a medium from which a
moving image may by any means be produced.
 The final version of documentary which is a combination of film, conversation
and recording.
This could be probably protected as a dramatic work.
Section 3 of CDPA 1988:
(1) In this Part-- "literary work" means any work, other than a dramatic or musical work,
which is written, spoken or sung, and accordingly includes—
(a) a table or compilation other than a database,
(b) a computer program,
(c) preparatory design material for a computer program and
(d) a database;
"dramatic work" includes a work of dance or mime; and
"musical work" means a work consisting of music, exclusive of any words or action
intended to be sung, spoken or performed with the music.
(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it
is recorded, in writing or otherwise; and references in this Part to the time at which such
a work is made are to the time at which it is so recorded.
(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by
or with the permission of the author; and where it is not recorded by the author, nothing
in that subsection affects the question whether copyright subsists in the record as
distinct from the work recorded.
On the fact dramatic work includes a work of dance or a mime
Ahmad has recorded it in his final documentary and the conversation
need not be recorded with the permission of the author.
However there may be some issues in regards to considering the work
as a dramatic work as per the definition given by case laws
Dramatic work includes the scenario or script for films, plays written for
theatre, cinema, television or radio and choreograph works. It does not
include a static objects, sets, scenery or costumes.
However to quality as a dramatic work it must be a work of action that
is capable of being performed.
 On the fact, the documentary cannot be performed entirely since it
includes scenery except for the music and the conversation between
residents.
Creation Records v News Group (1997)
β The preparation in the production of the cover for Oasis’s album
Be Here Now, Noel Gallagher arranged for a series of objects, a
rolls Royce, a motor bike, a clock) to be placed around a
swimming pool.
β This was then photographed by the claimant and the photo was
used as album cover
β However the photographer from the defendant newspaper was
also present and took a photograph of the scene and published
in their newspaper and offered to sell posters of it.
β The argument for dramatic work failed since arranging objects for
photo shoot for record sleeve was a work of artistic craftsmanship
or collage because the composition was intrinsically ephemeral
and its continued existence was to be in the form of a photograph
image.
Norowzian v Arks (No 2)(2000)
β The Court of Appeal was called upon to decide whether a
Guiness advertisement which featured an actor dancing while a
pint of Guiness was being poured had infringed copyright in the
earlier film “joy” which the advertisement copied.
β One of the notable features of Joy was that it utilized a particular
editing technique known as jump cutting
β Jump cutting is done by cutting segments out of the film to
produce a series of artificial effects.
β One of the consequences of this was that the finished film
contained a series of movements that could not performed by
the actor.
β At first instance it was held that as the artificial dance shown on
the edited film could not be performed, the film did not embody a
dramatic work.
β If the film had shown all the movements of the actor it would
have been protected.
β The Court of Appeal interpreted the requirement that a dramatic
work must be capable of being performed to include
performances by artificial means such as the playing of a film.
β Kitchen J stated that the features of similarity between the
claimant’s and defendant’s computer games could be more
described as features of a dramatic work than those relied on in
Green v Broadcasting Corporation of New Zealand.
β Consequently a cartoon may be dramatic work.
On the fact, since capable of being performed includes artificial means,
therefore the entire work could be considered as dramatic work since it
can be performed artificially.
 Conversation between the residents
 Walter v. Lane - report of a speech reprinted in a collection of speeches.
Reporter has copyright in the speech for doing the relevant work
reporting. However, if speaker dictates (whether into tape recorder or to
stenographer) copyright belongs to speaker.
On the fact, although Ahmad breach the copyright of the residents but
he will still receive the copyright as he recorded it
The residents do not have copyright over the spoken words until it is
recorded.
 The piano music by Ahmad
A musical work is defined by ‘a work consisting of music exclusive of any
words or action intended to be sung, spoken or performed with the music
This will be taken as a musical work by following Section 3 of CDPA
1988.
Joint Authorship
 The question indicates that Ahmad meets his best friend, Balthazar, every week
for a coffee and a chat, and has done so for many years.
 It was on one of these occasions that Balthazar came up with the idea for the
film. At subsequent meetings for coffee, Ahmad and Balthazar often discussed
progress on the film.
 Balthazar suggested that Ahmad should use his own piano-playing for the
soundtrack and, on one occasion, Balthazar even accompanied Ahmad to the
seaside to discuss potential shots for the film. When SeaWorld was completed,
Ahmad said to Balthazar, ‘I’m really grateful for all of your help with the film. I’m
going to take you out for dinner as a thank you.
 On the fact, one has to see whether there is any issue as to joint authorship
between Ahmad and Balthazar.
 Kogan v Martin (2019)
Nicholas Martin, the credited writer of the screenplay for the
film Florence Foster Jenkins (released in 2016), brought a claim in the
IPEC seeking a declaration from the court that he was the sole author of
this screenplay. During the time that the first drafts of the screenplay
were written, opera singer Julia Kogan was romantically involved with
Mr Martin and the pair lived together, separating before the final draft
was completed. Ms Kogan argued that she was a joint author of the
screenplay in light of the contributions which she had made and sought
a declaration as such.
At first instance in the IPEC, the Court held in Mr Martin’s favour,
deciding that Ms Kogan’s input was insufficient to qualify her as a joint
author of the screenplay. Ms Kogan appealed this decision on a number
of grounds.
The Court of Appeal allowed the appeal, concluding that the judge at first
instance had adopted an “erroneous approach to the evidence” and
“applied incorrect legal standards to the assessment of the sufficiency of
Ms Kogan’s contributions”. The court therefore set aside the first
instance judge’s declarations and ordered a retrial in the IPEC.
LJ Floyd conducted a review of the existing authorities, considering each
of the four requirements of joint authorship (collaboration, authorship,
contribution and that contributions must not be distinct – section 10(1)
CDPA 1988) and providing clarification where necessary. Following this
review, LJ Floyd summarised the 11 key requirements of joint authorship
at [53] as follows:
(1) A work of joint authorship is a work produced by the
collaboration of all the people who created it.
(2) There will be a collaboration where those people undertake
jointly to create the work with a common design as to its
general outline, and where they share the labour of working
it out...
(3) Derivative works do not qualify. Works where one of the putative
authors only provides editorial corrections or critique... do not
qualify. Ad hoc suggestions of phrases or ideas... do not qualify.
(4) In determining whether there is a collaboration to create a
literary or artistic work it is never enough to ask "who did the
writing?"... For example there may be joint authorship if one
person creates the plot and the other writes the words...
(5) Joint authors must be authors, in the sense that they must
have contributed a significant amount of the skill which went
into the creation of the work... The statutory concept of an
author includes all those who created, selected or gathered
together the detailed concepts or emotions which the words
have fixed in writing.
(6) Contributions which are not "authorial" in the above sense do not
count...
(7) The question of what is enough of a contribution is to be
judged by the Infopaq test, i.e. whether the putative joint
author has contributed elements which expressed that
person's own intellectual creation. The essence of that term
is that the person in question must have exercised free and
expressive choices. The more restrictive the choices the less
likely it will be that they satisfy the test.
(8) The contribution of a putative joint author must not be distinct.
(9) There is no further requirement that the authors must have
subjectively intended to create a work of joint authorship.
(10) The fact that one of the authors has the final say on what
goes into the work may have some relevance to whether
there is a collaboration, but is not conclusive...
(11) It follows that the respective shares of joint authors are not
required to be equal, but can reflect, pro rata, the relative amounts
of their contributions
On the fact, the conversation between them (Ahmad and his friend) was
made over a coffee
Balthazar came up with the idea for the film. At subsequent meetings for
coffee, Ahmad and Balthazar often discussed progress on the film.
Balthazar suggested that Ahmad should use his own piano-playing for
the soundtrack and, on one occasion, Balthazar even accompanied
Ahmad to the seaside to discuss potential shots for the film.
On the fact, decide accordingly based on the facts.