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Per Wimmer wanted to be the first person to take part in a
tandem skydive over Everest and wanted to film the skydive. Stephen
Slater joined the project as a cameraman on the basis that Wimmer
would cover his travel costs but Slater would not be paid any fee.
No written agreement was entered into. There was no express term
addressing copyright.
Wimmer used some of the footage shot by Slater in a programme
broadcast on Danish television. Slater claimed infringement of
copyright. Wimmer counterclaimed for infringement by Slater, who
had posted some of his footage on YouTube.
The Law
The first owner of copyright in a work is the author (unless the
author is an employee). In the case of a film, the author is taken
to be the producer and the principal director, unless the producer
and the principal director are the same person. The Copyright Act
defines the producer as the person by whom the arrangements
necessary for the making of the film are undertaken. The term
director is not defined in the Act. In most cases the principal
director is likely to be the person who had creative control of the
making of the film.
The "person by whom the arrangements necessary for the
making of the film are undertaken" is highly fact sensitive.
Where the film is funded by A and B assists in filming (for
example, by running the shoot and engaging the director, crew and
actors), A will be the producer where there would not have been a
film had A not initiated its making and organised the activity
necessary for its making and paid for it. A may not have had the
knowledge or ability to make the film without B's assistance,
but B would not have made the film unless B had been engaged to do
so by A.
The arrangements necessary for the making of a film include the
provision of finance but the person who undertakes those
arrangements is the person who is directly responsible for paying
production costs rather than the entity, who could be a bank, a
broadcaster or an advertiser, from whom that person obtains the
money. Even if it provides all of the money, that entity is not the
person undertaking the necessary arrangements.
The Decision
The Patents County Court held that Slater shot the footage but
Wimmer was the person by whom the arrangements necessary for the
making of the film were undertaken. Slater's filming only
happened because Wimmer decided to undertake the project and
arrange for it to be filmed. Wimmer did not just pay for the event,
he also paid costs associated with making the film such as paying
Slater's travel expenses. But Wimmer was not merely the banker,
the project was his project. He had also made the arrangements
whereby another cameraman, a still photographer and a
cinematographer were engaged.
The contested footage was a work of joint authorship. The joint
authors were Slater as principal director and Wimmer as
producer.
Any restricted act (such as reproducing the work) will be an
infringement unless it is permitted by all the authors. Each of
Slater and Wimmer had reproduced the footage without the consent of
the other and had therefore each infringed the other's
copyright.
The Lessons
A film is a work of joint ownership. All joint owners must
consent to any exploitation of the film. For practical reasons, it
makes sense for one person to have control of the exploitation of
the film. That person will need written authority from the joint
owners, whether by way of assignment or licence of their interests
in the copyright or by way of an appointment as the agent for all
of the joint owners.
A written agreement between the producer and the director
dealing with the assignment or licence of copyright could help
avoid costly and time consuming litigation.
A production services company may not have any interest in the
finished film (as it would not be the producer within the meaning
of the Copyright Act), but it may be entitled to copyright in some
of the constituent parts. The commissioning entity should therefore
ensure that the production services company assigns all of its
copyright interests in the products of its services and, to avoid
any arguments, in the finished film.
Photographers should bear in mind that where they shoot video
as well as still photos, the rules on first ownership of copyright
applying to video are different from those applying to still
photos.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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