C produced a film using editing technique called ‘jump cutting’, whereby film reels were spliced together to make a dancer perform moves that could not in reality follow on from one another. C sent film to D, an advertising agency, who then produced their own film using the same cinematographic technique (although with a different dancer and on substantially different subject matter). This film was used in advertisement by Guinness. C sued D for breach of copyright.
Was held at first instance that a film could not be ‘dramatic work’ as it was not capable of physical performance.This definition rejected by CofA, who held:
· Dramatic work is any work of action capable of being performed before an audience
Ø Thus no need for work to be capable of physical performance
· Therefore a film is capable of being a dramatic work as per CDPA 1988 s.1.
Ø i.e. provided it is capable of being played in front of an audience
Ø which will ‘often be the case’
· Thus on facts:
i) Dance itselfdid not constitute a ‘dramatic work’
- i.e. because it was constructed from jump-cutting, was not capable of performance
- impossible for any dancer to recreate what the dancer in film was doing
ii) Filmdidconstitute a ‘dramatic work’
· However on facts, was no infringement.