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I. COPYRIGHT: CASES AND MATERIALS
the plaintiff ’s work. At that level of abstraction, the idea, though expressed in the design, would
not have represented sufficient of the author’s skill and labour as to attract copyright protection.
Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea,
the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of
the author’s skill and labour, tends to lie in the detail with which the basic idea is presented. ...
In this case, however, the elements which the judge found to have been copied went well beyond
the banal and I think that the judge was amply justified in deciding that they formed a substantial
part of the originality of the work.
- Copyright does not subsist in style
Norowzian v. Arks Ltd (No. 2) [2000] E.M.L.R. 67 (U.K.: Court of Appeal)
[The plaintiff Norowzian shot a short film called “Joy” on a building rooftop,
featuring a man dancing to music. Norowzian then edited the film, cutting out
particular sequences, so that the dancer seemed to be doing impossible,
almost surreal, moves. Later, an television advertisement for Guinness ale
featured a man dancing in the same jerky way. The dance, setting and music
were different, but the advertisement (called “Anticipation”) copied Norowzian’s
filming technique and the idea of a man seeming to do impossible dance steps.
When Norowzian sued the second film-makers and the Guinness Brewery for
copyright infringement, the defendants claimed they had merely copied the idea
of the earlier film, not its expression. The Court agreed with the defendants and
dismissed the action.]
LORD JUSTICE NOURSE:
[T]here is a striking similarity between the filming and editing styles and techniques used by the
respective directors of the two films. But no copyright subsists in mere style or technique.
[Counsel for the defendant] instanced the technique of Pointillism, which was originated by the
neo-impressionists Seurat and Signac. That was a telling example. If, on seeing La Baignade,
Asnièresat the Salon des Artistes Indépendants in 1884, another artist had used precisely the
same technique in painting a scene in Provence, Seurat would have been unable, by the canons
of English copyright law, to maintain an action against him. Other examples of original artistic
styles or techniques whose imitation in the production of an entirely different subject matter
would not found such an action might be the “sprung rhythm” of Gerard Manley Hopkins’ verse
or the thematic build-up of Sibelius’s second symphony. So here, the subject matter of the two
films being ... very different one from the other, the similarities of style and technique are
insufficient to give the claimant a cause of action against the defendants.
- Copyright does not subsist merely in news
In Wainwright Securities Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (U.S.
Court of Appeals, 2d Cir. 1977), the plaintiff issued financial reports to
subscribers. The defendant summarized the reports in its own newsletter,
crediting the plaintiff as a source. The court decided that there was no copyright
in news but there was in “the manner of expression, the author’s analysis or
interpretation of events, the way he structures his material and marshals facts,
his choice of words, and the emphasis he gives to particular developments.”
The defendant had copied these elements in its summaries and had therefore
infringed the plaintiff’s copyright.
