Anticipation (advertisement) - Lawsuit

Lawsuit

In 1992, British director Mehdi Norowzian submitted a show reel containing a number of short examples of his work to several prospective employers, including the Irish advertising agency Arks Ltd., in the hopes of being taken on to direct one or more of their commercials. Included on the reel was a short piece entitled Joy, which was shot using a static camera on a London rooftop and comprised a jump cut sequence of a man performing an extended dance of exuberation against a plain canvas background.

Arks Ltd. were contracted by Guinness to produce an advertisement to run in Ireland. Among the ideas proposed was one based on a scene from the cinematic version of Roddy Doyle's novel, The Snapper, where a man rushes into a pub to celebrate the birth of his grandson with a pint of Guinness. The artistic director at Arks, thinking on possible ways to build on the concept, recalled Norowzian's submitted reel and came up with a script and storyboard based on Joy to present to Guinness. The idea was accepted, and Arks approached Norowzian to direct the commercial. Norowzian refused, as he was unwilling to simply "commercialise" an old idea, and wanted to create something new. Rebuffed, the agency then took on Richard Smyth as director, urging him to create something "with an atmosphere broadly similar to that portrayed in Joy". Feeling that the original storyboard was too close to Joy, a new one was prepared. The result was Anticipation.

Following the broadcast of the television spot in 1994, Norowzian lodged a complaint and ultimately a lawsuit against Arks Ltd. and Guinness, claiming that Anticipation breached his copyrights and accusing the agency of passing off. The plaintiff's claim for copyright infringement were based on a passage in the Copyright, Designs and Patents Act 1988 defining a dramatic work as including "recordings of a work of dance or mime", and that Anticipation was, or included, a copy of a substantial part of Joy. The case reached the High Court in 1997, where the claim of passing off was dropped. On July 17, 1998, Justice Rattee rendered his judgment that the jump cutting techniques used in Joy produced something qualitatively different from a recording of a dance or mime routine and that, as such, Joy was not in itself a dramatic work. It was therefore defined as an entrepreneurial work, a status which confers protection over only the physical recording of a work rather than the work itself. He also ruled that Anticipation did not reproduce either the whole or part of Joy.

The decision was appealed, but while the Court of Appeal unanimously held that the content of a film (including the use of film and editing techniques) could enjoy copyright protection as a dramatic work, the presiding Justices ruled that Anticipation did not significantly copy any portion of Joy and dismissed the case. Ultimately, Norowzian was ordered to pay £200,000 in legal costs. As a result of the case, the Institute of Contemporary Arts called for reform of copyright law in the United Kingdom.