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1. Subject matter s1(1) CDPA closed list covers
(a)original literary, dramatic, musical or artistic works,
(b)sound recordings, films or broadcasts, and
(c)the typographical arrangement of published editions.

1 Opening statement
For the wardrobe to be a copyright work under the CDPA, B will need to bring it within one of the prescribed categories in s1(1) ('closed list').

2 The categories
Authorial works (require fixation - s3(2))



Literary
Dramatic
Musical
Artistic

Entrepreneurial works



2.1 Films (can also be dramatic though)
Sound
Broadcast
Typographical arrangement of published editions

Literary works - s3(1)

s3(1) Literary work

"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
(b)a computer program;
(c) preparatory design material for a computer program and
(d) a database - see s3A 2.1.1 General points

A literary work is not limited to works of literature; can include anything written or printed - University of London Press {maths exam paper}.

Artistic quality is irrelevant - University of London Press

2.1.2 Specific scenarios
Invented names (no)

Not literary works (Exxon)

Titles and headlines (possibly)

In general, a title is not sufficiently substantial to be a literary work (Francis, Day and
Hunter v 20th Century Fox):
o In that case: 'The Man Who Broke the Bank at Monte Carlo' was not protected - 'broke the bank' is a common expression and 'Monte Carlo' is the place most obvious to break a bank at).

But possibly a creative title would distinguish Francis and can be a literary work

2.1.3 Statute
Computer program

Graphic User Interface (GUI) is not a computer program because a key characteristic of a computer program is that it enables the reproduction of the program itself.

Databases s3A
(1)In this Part "database" means a collection of independent works, data or other materials which—
(a)are arranged in a systematic or methodical way, and
(b)are accessible as by electronic or other means.
Testindividually to be a database

per s3A

i. ii.

iii. Collection of independent data,
which is arranged in a methodical way,
and are individually accessible Fixtures Marketing:

The data was football fixtures:
o Each fixture was independent of each other (i.e. had independent autonomous value)
o Arranged in methodical way: organised chronologically.

Dramatic works - s3(1)

2.2 s3(1)

"dramatic work" includes a work of dance or mime; and

2.2.1 TV series format
Each individual episode can be protected as a film and dramatic work, but can the series format itself (i.e. the features repeated show-to-show) be a dramatic work?
General:

A TV series format will not be a dramatic work as the features which repeat show-toshow must have sufficient unity in order to be capable of being performed - Green v
BCNZ.
o

In that case: the features of 'Opportunity Knocks' were unrelated to each other; just a selection of random elements

Exception

Banner Universal Motion Pictures: it is at least arguable that a TV series format is a dramatic work if it (i) has clearly identifiable features, which taken together (ii)
distinguish the show from similar shows, and (iii) can make up a coherent framework which can be repeatedly applied.

2.2.2 Video game
Will have literary and artistic works within it, but can the whole video game itself be a dramatic work?

No as the sequence of images will not be the same from one game to another, so (1)
no sufficient unity, and (2) not capable of being performed - Nova v Mazooma
Games. 2.2.3 Films

A film can be protected as a dramatic work as it is capable of being performed in front of an audience (performance by artificial means) (Norowzian v Arks)

Three situations:
i. Recording of a Broadway show:
 Broadway show is a dramatic work (capable of being performed).
 Recording is a film and a dramatic work (capable of being performed
(both actually in a physical sense and the artificial sense)).
ii. Recording of a sporting event, news reel, static plant plot
 Sporting event, news reel, static plant pot is not a dramatic work
(sporting event can be as is a 'work of action' but just won't be original)
 Recording is just a film.

iii. Recording of a cartoon, heavily-edited film
 The cartoon, heavily edited film is not a dramatic work (not capable of being performed)
 Recording is a film and a dramatic work (capable of being performed in front of an audience in the artificial sense)

Musical works - s3(1)

2.3 s3(1)

musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Note: musical works are not lyrics (literary works), dances or performances (dramatic works)

2.3.1 General points

Mere noise is not a musical work - Hyperion Records v Sawkins
The actual notes of music are not the only subject matter covered; also covers other elements that contribute to the sound as performed, e.g. tempo and performance instructions - Hyperion Records v Sawkins

2.3.2 Can silence be a musical work?

Arguments against:
o Mere noise is not a musical work (Hyperion Records v Sawkins) - in a way silence is similar to mere noise.
Arguments for:

The fact that the Cage dispute resulted in a six-figure settlement could indicate that silence can count as a musical work.

Artistic works - s4(1)

2.4 4 Artistic works.
(1)In this Part "artistic work" means—
(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
(b)a work of architecture being a building or a model for a building, or
(c)a work of artistic craftsmanship.

2.4.1 Graphic work- s4(1)(a)
s4(2)
"graphic work" includes—
(a)any painting, drawing, diagram, map, chart or plan, and
(b)any engraving, etching, lithograph, woodcut or similar work;

2.4.1.1 Painting
Can make-up constitute a painting?

No (Merchandising v Harpbond)

Can a tattoo constitute a painting?

Make up is not (Merchandising v Harpbond)

But is a tattoo different?
o Merchandising v Harpbond said that a painting needs a surface and a face
(unlike a canvas) is not, indicating that a tattoo on the body is not a painting either.
o But if the decision is instead justified on the basis that make-up is temporary,
and a painting is intended to be permanent: then a tattoo would be protected. 2.4.1.2 Drawings and diagrams

E.g. sketches of people, landscape, industrial designs

2.4.2 Sculpture- s4(1)(a)
Test

 To be a sculpture, the primary purpose of object must be for visual appeal (MANN
J's in Lucasfilm)
Examples applying the test
If the primary purpose is not visual appeal, but utilitarian/functional, then is not a sculpture

The Stormtrooper helmet (Lucasfilm)
o Primary purpose was utilitarian/functional (worn as a costume in a film to identify a character)
o CoA distinguished the Stormtrooper helmet from the helmet that appears on a bronze statue of a soldier:
 Statue of solider: the helmet has no functional/practical purpose;
primary/intrinsic purpose is for visual appeal.

'Ready made' art (e.g. Damien Hurst's shark, bricks, urinal)

Under LADDIE J's test in Metix v Maughan (a sculpture is a three-dimensional work made by 'an artist's hand')
o would fail as not made by artist's hand.

Under MANN J's test in Lucasfilm might succeed if primary/intrinsic purpose is for visual appeal:
o A pile of bricks, displayed at the Tate modern, is capable of being a sculpture (has artistic purpose); whereas the identical pile of bricks at the end of my driveway is not (has functional/utilitarian purpose) (MANN J's example).

2.4.3 Work of architecture - s4(1)(b)
(b)a work of architecture being a building or a model for a building s4(2)
- building" includes any fixed structure, and a part of a building or fixed structure; 

Do buildings include things like greenhouses, portable cabins and swimming pools built off-site (i.e. not part of a fixed building)
o According to Australian case of Darwin Fibreglass: a swimming pool built offsite and capable of being removed was a building.

Artistic quality - legislative history suggests that artistic quality is not relevant.

2.4.4 Work of artistic craftsmanship - s4(1)(c)

i. Artistic quality a. In George Henscher, LORD KILBRANDON focused on whether it was the creator's intention create something artistic.
b. Another focus is whether it has an objective artistic quality (Vermaat v Boncrest)
either to the public or to experts (Henscher)

ii. Craftsmanship

To be a work of craftsmanship, it must be a manifestation of sound workmanship
(Henscher).

Entrepreneurial works

2.5 2.5.1 Broadcasts - s6(1)
s6(1)
Broadcasts = electronic transmissions of images, sounds or other information, incl:
(a) ordinary broadcasting (transmitted for simultaneous reception by members of the public)
(b) transmissions at a time determined by the person making the transmission (e.g. 'narrowcasting')

Covers: TV broadcasting, radio broadcasting, teletext. Technology neutral so covers analogue and digital etc.

2.5.1.1 Two types of broadcasting
Ordinary broadcasting (s6(1)(a))
E.g. BBC One on television

'Simultaneous reception by members of the public'
o So excludes on demand services (e.g. Netflix) because that is not simultaneous reception.

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