Oxford International Intellectual Property Moot 2023

Instructions
The 2023 moot concerns Bouvier v Erewhonian Airlines [2022] HCE 213. A copy of this
case is included in the pages that follow, along with relevant statutory provisions and
a list of the cases referred to by Justice Chen-Wishart.

At first instance in the High Court of Erewhon, the Honourable Justice Chen-Wishart
held that:

1. A film can constitute a dramatic work for the purposes of Erewhonian copyright
law. The motion picture, The Substitute, is protected as a dramatic work and as a
film.

2. The authors of The Substitute are as follows:

a. As a dramatic work – the director, Ms Webb, is the author. Ms Bouvier is
not a joint author in her capacity as Director of Photography.
b. As a film – the joint authors are Ms Webb (as director and producer) and
Ms Bouvier (as producer). They are joint owners of copyright in the film.

3. There was no infringement of copyright in The Substitute as a film by copying

three extracts from that work in the short film, Takeoffs.
a. The extracts constituted a substantial part of The Substitute.
b. However, copying the extracts was a fair dealing for the purpose of
pastiche.

4. Had Ms Bouvier been an owner of copyright in The Substitute as a dramatic work,

it would have been held that there was no infringement by the creation of a
lookalike sequence in EA’s new Flight Safety Video.
a. A substantial part of The Substitute was reproduced in the Safety Video.
b. However, this reproduction was a fair dealing for the purpose of pastiche.

5. Had Ms Bouvier been an author of The Substitute as a dramatic work, her claim for
infringement of her integrity right would have failed as there was no derogatory
treatment.

The claimant was granted leave to appeal from this judgment in relation to Items 2(a),
3(b), 4(b) and 5; and the defendant was granted leave to appeal in relation to Items 1
and 3(a). The defendant did not seek leave to appeal Items 2(b) and 4(a). The Court
of Appeal upheld (without releasing a substantive opinion) the decision of Justice
Chen-Wishart and dismissed the appeal and cross-appeal. The parties have been
granted leave to bring a further appeal to the Supreme Court of Erewhon.

It is your task to prepare written and (for teams that are invited to the Oral
Proceedings in March 2023) oral submissions for this appeal.

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Some points to consider:

a. Each written submission must cover all issues on appeal, i.e. set out the arguments
on Items 1, 2(a), 3(a), 3(b), 4(b) and 5 in the list above. Present these arguments
in the order that you consider to be most logical. Do not worry about the presence
of the appeal and cross-appeal, such that the claimant is sometimes the appellant
and sometimes the cross-respondent.

b. Whilst you are encouraged, within the grounds of appeal, to present arguments
and authorities not mentioned by Justice Chen-Wishart, you should not seek to
introduce entirely new causes of action, press arguments that have been conceded
or that were never ventilated in the original proceedings, or press matters outside
the appeal. For instance, you may not seek to argue that the use of extracts in
Takeoffs was a fair dealing for the purpose of quotation.

c. Erewhon is a common law jurisdiction, and the opinion of Justice Chen-Wishart

includes reference to a number of cases. For the purposes of the written
submissions, it is expected that you will deal with these cases as appropriate, and
you risk missing out on credit if you omit any analysis of them. However, these
references are not intended to constitute your sole authorities for the moot, and
indeed you are expected to rely on other primary and secondary materials. The
emphasis you give to any particular authority (including those cited by Justice
Chen-Wishart) is up to you, although the Panel will not look favourably upon
strong reliance on an unduly narrow spectrum of authorities.

d. Appeals to the Supreme Court are on points of law only, although it is permissible
to challenge the legal conclusions that arise from findings of fact.

e. Although the moot is held in the UK, this is an international competition and you
are not limited in the jurisdictions from which you use authority. You may
therefore use cases from around the world. Ensure you make it clear why any
given case is relevant to the legal issues in dispute. It is also permissible to cite
academic commentary in support of your legal arguments.

f. Erewhon is not a member of the European Union. It is a party to the Berne

Convention and is a member of the World Trade Organization and signatory to the
TRIPS Agreement. Treaties are not self-executing in Erewhon.

g. Requirements for your written submissions are contained in §14 of the Rules. The
following is some additional guidance:

i. You do not need to include such things as a table of contents, statement of

jurisdiction, statement of facts, index of authorities, etc. Submissions
should focus on the substantive matters raised in the appeal.

ii. When marking your submissions, the Panel will be instructed not to give
extra credit for court headings and other flourishes that merely give the

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 submissions the superficial ‘look’ of an official court document. Credit may
be awarded for a presentation style that facilitates the arguments being
made (for instance, in the content and number of headings, the use of a
logical paragraph numbering system, and so forth). You should not,
therefore, be worried about purely stylistic matters when constructing
your submissions.

iii. The word count includes all the text in the footnotes. It is recommended
that footnotes are used primarily for citation purposes, and that you
minimise the amount of substantive text that appears in the footnotes.

iv. There is no prescribed style guide for the submissions. Teams should,
however: (i) maintain consistency of style throughout each submission;
(ii) include full citations for sources on which they rely (at least the first
time any given source is cited); and (iii) ensure that whenever they quote
from a source, a pinpoint reference is included to the relevant page
number and/or paragraph.

v. Justice Chen-Wishart is a woman. You may refer to her as ‘Chen-Wishart J’

and ‘Her Honour’ in your written submissions.

Any requests for clarifications of or corrections to the moot problem should be

directed to the Moot Secretary at [email protected] by midday on Wednesday 3
November 2022 (Oxford time). Requests should note the paragraph number to
which they relate and explain why the requested information is expected to have legal
significance for the problem. If any clarifications or corrections are deemed necessary
by the Organising Committee (OC), these will be released on the moot website by the
end of Tuesday 15 November 2022. The OC will not respond individually to any
requests for clarifications or corrections, nor will it respond to requests that are
seeking assistance with substantive aspects of the moot.

Your submissions must be received by the Moot Secretary (at the email address
above) by midday on Tuesday 13 December 2022, Oxford time; see further §15-
§16 of the Rules. As noted there, within their written submissions, teams must
identify themselves only by use of the anonymous identifier given to them in advance
by the Moot Secretary. To apply for this identifier, you should email the Moot
Secretary well before the submission deadline.

The registration process will not open until after invitations have been issued to
compete at the oral rounds. These invitations will be issued in mid-late January 2022.
Only those teams who are invited to the oral rounds will need to register and
pay the registration fee.

To keep apprised of announcements and news in relation to the moot (#OxIPMoot),

please follow us on Twitter: @OxIPMoot.

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IN THE HIGH COURT OF EREWHON [2022] HCE 213

Before:

THE HONOURABLE JUSTICE CHEN-WISHART

Between:

Ingrid Bouvier

- and -

Erewhonian Airlines

Justice Chen-Wishart:

[1] This case relates to the motion picture, The Substitute, directed by Charlotte Webb
and released in 2007. The Substitute is a modern classic of Erewhonian cinema. It was
released to critical acclaim and won numerous awards, including for acting, direction,
screenplay, cinematography, costume design and musical score. Ingrid Bouvier, who
brings these proceedings, had two roles in the The Substitute: first, she was its
Director of Photography (i.e. cinematographer), and second, she co-produced the film
with Ms Webb. The defendant is Erewhonian Airlines (‘EA’). Ms Bouvier claims that
EA infringed copyright in The Substitute in two ways: first, it included a ‘lookalike’
sequence that reproduced a substantial part of The Substitute in its 2022 Flight Safety
Video (‘Safety Video)’; and second, extracts from The Substitute were included in a
short film, Takeoffs, that EA has played in its business class lounges.

[2] In order to understand Ms Bouvier’s claims, I will start by providing a synopsis of

The Substitute, including its iconic final scene, along with the two allegedly infringing
works: the Safety Video and Takeoffs. I will then turn to subsistence of copyright in
The Substitute, and in particular whether it is a dramatic work in addition to being a
film. This is crucial, as Ms Bouvier’s claims in relation to the Safety Video would seem
to be dependent on The Substitute being a dramatic work for which she is the author.
I have found that The Substitute is a dramatic work, however, in my view the author
of that work is the director, Ms Webb, meaning that Ms Bouvier’s claims in relation to
the Safety Video must fail. However, given the significance of this case, I have set out
what I would have found in relation to infringement, fair dealing and the moral rights
claim. For film copyright, for which Ms Bouvier is clearly an author and owner, I have
concluded that a substantial part of The Substitute was copied in Takeoffs, however,
there is no infringement as the defence of fair dealing for the purpose of pastiche
applies.

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Description of the works in this dispute

The Substitute

[3] The Substitute is 95 minutes long and is set in the early 1950s in Princess Cove, a
small town on the southern coast of Erewhon. The film centres on Eliza Sharkey, an
eleven year old girl who attends Princess Cove College, a school with around 50
pupils. Eliza is struggling to find her place in the world. She loves her family but finds
it difficult to fit in. Eliza is serious, cerebral and prone to anxiety. She enjoys music
and reading. Eliza’s father and brother, on the other hand, are laid-back to the point
of laziness. Both avoid hard work, whether at work or school. Eliza’s endlessly patient
mother is left to do almost all of the emotional and physical labour to keep the
household going, a point that is not lost on Eliza.

[4] One day, Eliza goes to school to find that her regular teacher has taken leave of
absence to recover from an illness. The substitute teacher is Miss Bergstrom, whose
intelligence and passion for education are immediately obvious to Eliza and the other
children. In the first lesson, on the gold rush era of 1860s Erewhon, Miss Bergstrom
attends class in full costume and regales the students with stories from that time. Miss
Bergstrom has unconventional teaching methods, a fact that goes down poorly with
the school principal but very well with the students. We learn that in addition to being
intellectually adventurous, Miss Bergstrom is actually adventurous – she has a pilot’s
licence and owns her own small plane, which she flew to Princess Cove. A number of
sequences, including the final scene, are of Miss Bergstrom flying her plane. The
evidence before me demonstrates that these aviation sequences have been the subject
of considerable praise from film critics and other members of the film industry. One
user of IMDb, giving The Substitute ten out of ten, even titled their review, ‘Dead Poets
Society meets Top Gun’.

[5] Miss Bergstrom is the adult role model Eliza never had. Eliza is able to speak with
Miss Bergstrom about her dreams and insecurities, and Miss Bergstrom helps Eliza to
connect better with Eliza’s family. On the final day of term, Eliza goes to Miss
Bergstrom’s classroom to invite her to a family dinner over the break. She finds Miss
Bergstrom packing her school things into a briefcase. Miss Bergstrom explains that
the regular teacher is better and will be returning next term. Sadly, Miss Bergstrom
needs to fly immediately to the west of Erewhon for another role. Eliza is inconsolable
and says she will never have another teacher as good as Miss Bergstrom. Miss
Bergstrom sits Eliza down and explains that she is sorry to be leaving but that Eliza
has everything she needs. Miss Bergstrom gives Eliza a card and tells her whenever
she is feeling lonely or scared, she should read the card. Eliza gives Miss Bergstrom a
hug goodbye and makes her way to assembly. As Eliza is entering the assembly hall,
she observes one of the other teachers, Miss Simpson, fighting back tears as she reads
a card on the same notepaper. Eliza opens her own card; in it is written the message,
‘You are Eliza Sharkey’.

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[6] The movie cuts to the final scene. Miss Bergstrom is shown walking across the
playground carrying a briefcase in one hand and a suitcase in the other. The assembly
hall, from which we can hear children singing, perches high in the background. Miss
Bergstrom pushes through a small gate and walks onto a field where her plane is
waiting. The camera follows her as she climbs into the plane and settles into the pilot’s
seat. The next shot is of the propellor starting. The camera angle then shifts to behind
the plane, where we see that the field is next to the ocean, and that there is only a
small amount of terrain before a cliff to the water below. Miss Bergstrom accelerates
towards the cliff; with only metres to spare, the plane leaves the ground. The plane
heads out over the ocean, before taking a right turn. The final moments of the film
show Miss Bergstrom flying along the Erewhonian coast, including over the famous
‘Seven Sisters’ rock formation. This footage was captured from a second plane that
followed Miss Bergstrom’s journey. The credits then begin to roll.

The Safety Video

[7] EA released a new Safety Video in April 2022. EA wanted this video to be strongly
connected to its brand values and its status as national carrier of Erewhon. It decided
that it would create a video that was inspired by scenes from famous Erewhonian
films. The seven minute video covers all the usual safety information, such as how to
use one’s seatbelt, where to find and how to put on one’s lifejacket, correct procedure
for wearing oxygen masks, the brace position, the location of the exits, and evacuation
procedures. For each element, the information is presented in a way that draws from
the source film, for instance the scenery, costumes, storyline, and so forth; plus the
name of the source work appears briefly on the screen. The Safety Video was created
under the leadership of employee, Otto McManus, a member of staff who has
considerable expertise in film production. The budget was well over ED$800,000,
given the personnel, special equipment and actors required.

[8] The seatbelt component – which takes 45 seconds of the entire Safety Video – is
inspired by the final scene in The Substitute. The same filming location is used, and
the scene starts with a woman walking across the same schoolyard that Miss
Bergstrom did, with the same assembly hall in the background. The woman is wearing
1950s-style pilot clothing. She walks through a gate and towards a similar propeller
aircraft to that in The Substitute. As she is walking, she looks to the camera and says:

Seatbelts have improved a lot since they were first introduced on planes. Here’s
how to use yours.

She climbs into the plane and sits in the pilot’s seat. The next shot is of the lap of the
woman, where she demonstrates the instructions described in the voiceover (with a
modern seatbelt, for avoidance of any doubt). The voiceover says:

Fasten your seatbelt by inserting the clasp into the buckle. Tighten by pulling
the strap. You can undo your seatbelt by pressing the button.

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The next shot is taken from behind the plane, which at that point is stationary. The
plane starts to accelerate towards the cliff edge. Once the plane is airborne and has
executed its right turn, the Safety Video shows the plane heading towards the Seven
Sisters (which are visible in the distance). This footage was taken from a drone
hovering above the cliff edge. The voiceover (which resumes when the plane starts
moving down the ‘runway’) says:

Keep your seatbelt done up low and tight during takeoff, landing and whenever
the seatbelt sign is on. That includes infants and children. When seated at other
times, we recommend you keep your seatbelt fastened.

The Safety Video then cuts to the next element, in relation to lifejackets.

[9] EA did not request a licence from Ms Webb, Ms Bouvier or anyone else in relation
to its use of elements inspired by The Substitute. Mr McManus gave evidence that he
once attended a public lecture given by Ms Webb in relation to her experiences
directing The Substitute. This included how they selected the locations for filming and
how they handled the aviation scenes. Mr McManus drew from this knowledge, along
with watching The Substitute, when directing the seatbelt scene for the Safety Video.

Takeoffs

[10] The short film, Takeoffs, was created by Mr McManus. It is 14 minutes long. There
is no original footage in the film – Takeoffs was created by carefully editing together
short extracts from other films, including motion pictures, documentaries, actuality
footage, livestreams and CCTV. Some of the extracts are as short as five seconds; the
longest one is fifteen seconds. They are edited together to produce ten takeoffs in
which the plane is shown taxiing to the top of the runway, accelerating down the
runway, becoming airborne, and then climbing into the air. The editing is done so that,
for each takeoff, the transition between each clip is as seamless as possible. For
instance, Mr McManus gave evidence that, for the climb phase, he would do his best
to calculate the altitude of the plane, so that the next extract would be a plane at that
altitude. The clips are of varying ages and locations and show different plane types.
The camera angles vary, although as I just noted, the editing is intended to give the
impression of a single uninterrupted journey for each takeoff. The resulting product
is extremely engaging, even for the aviation non-enthusiast like myself. Mr McManus
did not clear the rights for any of the extracts.

[11] In making Takeoffs, Mr McManus used three clips from The Substitute, being: (1) a
five second extract of Miss Bergstrom’s plane flying over agricultural land in southern
Erewhon, this coming from the middle of the film where Miss Bergstrom takes Miss
Simpson on a picnic; (2) another five second clip, this one taken from the reverse-
angle shot of Ms Bergstrom’s plane accelerating towards the cliff in the final scene of
The Substitute; and (3) a seven second clip of Uncle Anny, Miss Bergstrom’s favourite
relative, driving his own light plane towards the runway at Princess Cove airfields.
These clips were taken from a DVD of The Substitute owned by Mr McManus.

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[12] Ms Bouvier did not suggest that Takeoffs was made in the course of employment.
Mr McManus, who is a video artist, explained that directing the Safety Video provided
some creative inspiration for Takeoffs, which was created by him at around the same
time. However, Takeoffs was produced entirely in his own time, and there can be no
suggestion that making Takeoffs was within the scope of Mr McManus’s duties. Rather,
Ms Bouvier’s complaint relates to EA playing Takeoffs in its business class lounges in
Erewhon. Each lounge includes a space that is used to ‘celebrate and promote’ major
Erewhonian events and other forms of artistic and cultural production. In the past,
this has included displaying paintings by Erewhonian artists, and installing a giant
model of an A380 plane constructed entirely out of Lego bricks when there was a
Lego-themed exhibition at the National Gallery of Erewhon. In May 2022, EA used this
space to celebrate four Erewhonian video artists, including Mr McManus. Takeoffs has
been shown as part of this exhibition. The information panel in relation to
Mr McManus provides information about him and his work, including that he is an
employee of EA and directed the Safety Video.

Subsistence

[13] In order for Ms Bouvier to prevail in her claims, The Substitute must fall within
the exhaustive categories of subject matter in section 2(1) of the Copyright Act 1997.
Ms Bouvier argued that The Substitute is a film, a point that was accepted by EA, and
which is clearly correct, given the definition of ‘film’ in section 1 of the Act. However,
the parties differed over whether The Substitute is also an original dramatic work.
Arguments focused solely on whether the category ‘dramatic work’ includes films, it
being accepted by EA that if The Substitute falls within this category, it is original.

[14] In Erewhon, the term ‘dramatic work’ is defined in section 1 to include ‘a work
of dance or mime’. This can be contrasted with jurisdictions in which the statutory
definition of dramatic work either excludes films (e.g., Copyright Act 2021
(Singapore), s. 15(1)) or includes them (e.g., Copyright Act RSC 1985, c. C-42 (Canada),
s 2 (definition of dramatic work)). It can also be contrasted with countries that list
cinematographic works as a category of authorial works: e.g., Act on Copyright and
Related Rights (Germany), ss. 2(1).

[15] In the absence of any express indications in the Erewhonian definition, should I
read ‘dramatic work’ to include films? Mr Tiny KC, counsel for Ms Bouvier, suggested
that I adopt the same approach as the Court of Appeal of England and Wales in
Norowzian v Arks (No 2) [2000] FSR 363. In that case, which also considered the status
of a film, it was held that the phrase ‘dramatic work’ was ‘at large’ and should be given
its ordinary meaning. Nourse LJ said at p. 367:

My own [definition] would be this: a dramatic work is a work of action, with or

without words or music, which is capable of being performed before an
audience. A film will often, though not always, be a work of action and it is
capable of being performed before an audience. It can therefore fall within the

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 expression ‘dramatic work’ in section 1(1)(a) [of the CDPA 1988] and I disagree
with the judge’s reasons for excluding it.

[16] Ms Jam KC, counsel for EA, pointed to a number of reasons why the category
‘dramatic work’ should not include films. She argued that such an interpretation
would conflict with the structure and language of the Erewhonian copyright statute,
in which there is already a category for ‘films’, which is defined broadly, and for which
the ‘authors’ are the principal director and the producer: section 8(2)(b). She argued
that I should understand the category ‘films’ to be, in effect, a hybrid of an authorial
and an entrepreneurial work. Concluding that some films can also constitute dramatic
works would create uncertainty and undesirable complexity.

[17] Overall, I prefer the approach of the claimant to the definition of dramatic work.
Nourse LJ was correct that the definition of ‘dramatic work’ should be given its
ordinary meaning, and I was also swayed by the observations of Buxton LJ that this
interpretation of ‘dramatic work’ is the only one that permits Erewhon to comply with
its obligation under the Berne Convention. As such, on the first question, in relation
to subsistence, I conclude that The Substitute is protected as an original dramatic work
and as a film.

Authorship & Ownership

[18] My second task is to determine authorship of The Substitute as a dramatic work

and as a film. This is a crucial step for ascertaining whether Ms Bouvier owns
copyright and enjoys moral rights. If she is not an author of the dramatic work, her
claim for moral rights will fail, as she conceded she is not a ‘director’ for the purposes
of those provisions. For copyright, Ms Bouvier must show standing to enforce rights,
which in this case requires her to be an author (and hence first owner) of copyright,
as she did not introduce any evidence to suggest an assignment or exclusive licence
of rights in her favour.

[19] I shall start with film copyright, as this is the most straightforward. Section 8(1)
of the Copyright Act says that the ‘author’ of a work is ‘the person who creates it’. The
next subsection contains further guidance in relation to the identity of this person,
including that for films, ‘that person shall be taken to be … the producer and the
principal director’: s. 8(2)(b). Producer is defined as ‘the person by whom the
arrangements necessary for the making of the … film are undertaken’: s. 1. Principal
director is not defined, but would seem to be ‘the person who had creative control of
the making of the film’: Slater v Wimmer [2012] EWPCC 7, para. 72. Thus, even if
Ms Bouvier contributed to the creative vision of the film in her role as Director of
Photography – which she in undoubtedly did – she is not the ‘principal director’. That
person is Ms Webb. That said, entirely separate to Ms Bouvier’s role as
cinematographer, she co-produced The Substitute with Ms Webb. As such, Ms Bouvier
is a joint owner of the film copyright with Ms Webb. EA did not seek to resist this
conclusion in relation to ownership of the film copyright.

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[20] In contrast, EA argued that if, contrary to its submissions on subsistence, The
Substitute is also a dramatic work, Ms Bouvier is not an author of that work.
Authorship was not discussed in Norowzian (No 2), perhaps because Mr Norowzian
was the only realistic candidate to be the author. However, it is necessary to confront
this question, as many films are mass collaborative works involving the creative
efforts of a large number of people. While some might be able to claim copyright in
some discrete, severable element of the film, the claims of others can only be to the
film as a whole. For these people, whether they are joint authors will involve
application of the test of joint authorship in section 8(6) of the Copyright Act: a ‘work
of joint authorship’ means ‘a work produced by the collaboration of two or more
authors in which the contribution of each author is not distinct from that of the other
author or authors’.

[21] My concern with applying this test to films is that recognition of a long list of
authors would lead to great difficulties in the management and exploitation of film
copyright. This is especially so in a jurisdiction like Erewhon, in which the cooperation
of all copyright owners is required for licensing and exploitation. That is, like the UK,
a licence must be given by or on behalf of all copyright owners, and one owner can
enforce rights against another owner who uses the work outside any express or
implied permission: Slater v Wimmer, paras 88-90.

[22] Ms Jam pointed me to the US case, Aalmuhammed v Lee, 202 F 3d 1227 (9th circuit,
2000), which echoes these concerns. That case considered whether the film Malcolm X
was a ‘joint work’ under US copyright law for which Jefri Aalmuhammed (credited as
‘Islamic technical consultant’) was an author. Mr Aalmuhummed made numerous
contributions to that film, including suggesting changes to the script to ensure the
film’s historical and religious accuracy, directing actors on set, creating two new
scenes, translating Arabic into English, and editing parts of the movie. In considering
whether these contributions were authorial, Judge Kleinfeld was concerned that if the
bar were set too low, such that anyone who made a substantial creative contribution
was an author, the ‘test’ would not distinguish one putative ‘author’ from another:

Everyone from the producer and director to casting director, costumer,

hairstylist, and "best boy" gets listed in the movie credits because all of their
creative contributions really do matter. (at p. 1233)

In Judge Kleinfeld’s view, it is not enough to make a creative contribution, even if

significant. The legal test for authorship should ask who ‘superintended’ the work, i.e.
who was the ‘master mind’:

In a movie this definition, in the absence of a contract to the contrary, would

generally limit authorship to someone at the top of the screen credits,
sometimes the producer, sometimes the director, possibly the star, or the
screenwriter — someone who has artistic control. (at p. 1233)

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Ms Jam argued that taking this approach, which prioritised creative control (and not
just contribution), the master mind was Ms Webb.

[23] Mr Tiny accepted the thrust of my concerns about a mammoth authorial group
but submitted that the approach in cases like Aalmuhammed was unduly restrictive
and represented pragmatism over principle. He argued that dramatic works are
‘works of action’ (Norowzian v Arks (No 2), p. 367), and that for a film, the ‘action’ –
the story arc, message or drama – is created through the interplay of visual imagery,
dialogue, musical score, sound, and so forth. In fact, he argued that cinematographers
have a particularly strong claim to authorship, being responsible for creating the
visual image. He referred me to evidence given by Ms Bouvier (which I accept) in
relation to her role as Director of Photography on The Substitute. During the pre-
production phase, this included: reviewing the script to devise a look and visual
approach for the film, in consultation with Ms Webb and other colleagues; providing
input into the selection of filming locations; and a great deal of technical planning in
relation to the equipment, locations and crew, including, for the flight scenes, research
into the weather conditions, sun position and likely filming challenges, and devising
and testing plans to obtain the required shots. During the production phase,
Ms Bouvier, amongst other things: watched rehearsals to fine-tune shooting plans in
consultation with Ms Webb; designed and set up the lighting; and oversaw the actual
photography of the film. Ms Bouvier had less of a role in post-production, although
she gave input into the editing process and arranged for additional photography to be
undertaken.

[24] Did these acts – which were no doubt creatively significant to the film – render
Ms Bouvier a co-author? I agree with Judge Kleinfeld and others regarding the dangers
of too loose a test of authorship, and that for films, creative control helps distinguish
authorial from non-authorial contributions. The evidence suggests that creative
responsibility for The Substitute was with Ms Webb. Although the screenwriter,
cinematographer and editor each made contributions, these were under Ms Webb’s
control and coordination. She could require that revisions be made to the script. She
guided the look and feel of the film across multiple parameters, including directing
the actors and working with the crew in relation to the sound and cinematography.
She conveyed her creative vision to the editor during the post-production phase. I
accept the evidence that Ms Webb did not micro-manage the film, instead encouraging
Ms Bouvier (and others) to make their own artistic and technical decisions. However,
Ms Bouvier was implementing Ms Webb’s creative vision, and Ms Webb had the final
say. As such, Ms Bouvier is not an author of the resulting dramatic work, which in my
view was authored solely by Ms Webb.

[25] In conclusion, Ms Webb is the sole author and owner of copyright in The
Substitute as an original dramatic work, there being nothing in the contractual
arrangements to assign rights to another individual. Ms Bouvier is joint owner of the
film copyright in her capacity as producer of The Substitute.

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Copyright Infringement

[26] Ms Bouvier made two complaints. The first was that copyright in The Substitute
was infringed by the making of a lookalike sequence in the Safety Video. This claim
fails, as Ms Bouvier does not have the necessary rights to bring this action. She owns
film copyright, for which the reproduction right pertains only to making copies of the
recording: Norowzian v Arks Ltd (No 1) [1998] FSR 394. It does not extend to
reshooting the film. Had I held that Ms Bouvier was an author of The Substitute as a
dramatic work (which copyright is ‘thick’ and extends to reshooting), I would have
held that EA reproduced a substantial part of that work and had prima facie infringed
copyright. Substantial part is judged by reference to the claimant’s work and is a
qualitative test: even if quantitatively short, a part may still be a ‘substantial part’ if it
is a vital or material part: Boomerang Investments Pty Ltd v Padgett (Liability) [2020]
FCA 535, para 203. In this case, EA did not copy the (unprotectable) idea of a plane
taking off near a cliff. It took an iconic scene – a recognisable and memorable part of
the source work – and used the same location and broadly the same sequence of
events and filming choices.

[27] Ms Bouvier’s second complaint relates to the copying of three extracts from The
Substitute in Takeoffs. Although EA did not create this work or authorise its creation,
it played Takeoffs in public through showing it in its business class lounges. This is an
exclusive right for film copyright: Copyright Act, s. 9(4)(b). EA may therefore be liable
for copyright infringement if Takeoffs contains infringing content.

[28] The core of EA’s submissions on infringement was that Takeoffs did not copy a
substantial part of The Substitute. Ms Jam pointed out that the three clips amounted
to only 17 seconds from a film that was of 95 minutes duration. To the extent that
qualitative considerations were relevant, two clips were of scenes that were not a
distinctive part of the film (the picnic scene and Uncle Anny), and the other one,
although a significant moment (the final scene), was not a substantial part as it was
only five seconds long and excluded much of the surrounding content (especially Miss
Bergstrom, the school assembly hall and the Seven Sisters).

[29] Mr Tiny argued that in assessing substantial part, the three clips could be
aggregated, and that despite omitting the surrounding content, the clip of the final
scene was still immediately recognisable. However, he also submitted that substantial
part is assessed different for films compared with dramatic works. He directed me to
the judgment of the Court of Justice of the European Union in Pelham GmbH v Hütter
(C-476/17) [2019] ECDR 26, where it was held that reproduction of a sound sample
from a phonogram, even if ‘very short’, was a reproduction ‘in part’ for the purposes
of the Information Society Directive, unless it was modified to be unrecognisable to
the ear. I was struck by the importance, in that case, of the goal of the Directive not
only to establish a high level of protection of copyright and related rights but also:

the specific objective of the exclusive right of the phonogram producer, referred
to in recital (10), which is to protect a phonogram producer’s investment. As

9
 stated in that recital, the investment required to produce products such as
phonograms, is considerable to such an extent that it is necessary in order to
guarantee phonogram producers the opportunity of satisfactory returns.
(para 30)

[30] I agree with Mr Tiny that the same can be said of the investment of the producer
of a film. Indeed, the evidence from Ms Bouvier (which I accept) demonstrates that
shooting the flying scenes were particularly resource-intensive, given the need to hire
functioning 1950s planes, hire pilots (the actors not actually flying the planes), secure
large locations for filming, and so forth. The photography of these scenes was not
straightforward either, and indeed for a number of sequences – including the final
shot over the Seven Sisters and the footage of Miss Bergstrom flying over agricultural
lands after her picnic with Miss Simpson – the camerawork was done from a second
plane. I am taken by the need to protect the investment of producers in creating
sequences such as these. As such, irrespective of the dramatic significance of these
three scenes for The Substitute, they were all significant to the producers’ investment.

[31] In conclusion, Takeoffs copied a substantial part from The Substitute. Unless a
defence applies, EA will be liable for copyright infringement by playing Takeoffs in its
business class lounges.

Fair dealing

[32] EA argued that even if it prima facie infringed copyright in The Substitute through
its acts with the Safety Video and Takeoffs, these acts fell within fair dealing for the
purpose of pastiche in section 45A of the Copyright Act. I agree, and given this defence
is a recent addition to the statute, will set out my reasoning for both works, even
though fair dealing is only a live issue for Takeoffs.

[33] In reaching my conclusions on pastiche, I drew assistance from the judgment in

Shazam Productions Ltd v Only Fools The Dining Experience Ltd [2022] EWHC 1379
(IPEC). This case related to an interactive dining show in which the actors used the
appearance, mannerisms, voices and catchphrases of characters from the famous UK
series, Only Fools and Horses. The backstories of and relationship between the
characters informed the show, although the show itself departed from anything that
appeared on the series, being constructed around a pub quiz. One of the arguments
presented by the defendant was that the Only Fools Dining Experience (‘OFDE’) was
a fair dealing for the purpose of pastiche in section 30A of the Copyright, Designs and
Patents Act 1988.

[34] I agree with the approach in Shazam at paras 186-187 that in interpreting the
word ‘pastiche’, we should start from the term’s ordinary meaning, which covers two
types of use: imitation of the style of pre-existing works, and the utilisation or
assemblage of pre-existing works in new works. This is seen, for example, in the
definition of pastiche (as a noun) in the Oxford English Dictionary:

10
 1. a. A novel, poem, painting, etc., incorporating several different styles, or made
up of parts drawn from a variety of sources.

b. A musical composition incorporating different styles; a medley.

2. a. A work, esp. of literature, created in the style of someone or something else;

a work that humorously exaggerates or parodies a particular style.

b. The technique of incorporating distinctive elements of other works or styles

in a literary composition, design, etc.

[35] In Shazam, it was held that that the OFDE was not a pastiche, including because
there was no imitation in the style of the source work, or an assemblage of parts, but
rather the transposition of characters into a new format. I am not sure I agree with
this conclusion, however, even if it is correct, the facts before me differ significantly:
Takeoffs is clearly a pastiche film (in the ‘assemblage’ sense), and I would have found
that the Safety Video is a pastiche (in the ‘imitation’ sense). The question in both cases
is whether EA’s use was a fair dealing.

[36] Starting with Takeoffs, although I held that even a quantitatively small part can
comprise a ‘substantial part’ of the source work, it is important, as noted in Pelham v
Hütter, to also have regard to the defendant’s interest in artistic expression. The
pastiche exception is one way of reflecting this important interest. I believe that
Mr McManus’s use was fair: his copying did not involve the same sort of ‘wholesale’
taking found to have occurred in Shazam (para 196), he added a great deal of new
expression, and his use did not, in my view, compete with a normal exploitation of The
Substitute. If Mr McManus could take the shelter of the pastiche exception in creating
the work, so too could EA in playing it in their business class lounges.

[37] For the Safety Video, I likewise would have found that EA’s use was fair. Although
it arguably involved more extensive copying than Takeoffs, this level of copying was
proportionate and was necessary for the pastiche purpose. The voiceover, dialogue
delivered by the pilot, and inclusion of the sequence on how to use the seatbelt meant
that there could be no confusion that viewers were in fact watching an extract from
The Substitute. Indeed, in the introduction to the Safety Video, the voiceover states
that the video is a celebration of Erewhonian cinema. I appreciate the argument of
Mr Tiny that EA had a commercial motivation, in that the Safety Video was intended
to embody EA’s brand values and, in addition to being played in-flight, has been made
available on EA’s social media channels. However, if I were to find that mere
commerciality was enough to destroy fairness, the reach of fair dealing would be
significantly curtailed.

[38] In summary, EA has a defence to copyright infringement in relation to Takeoffs

and (had it been in play) the Safety Video.

11
Moral rights

[39] Ms Bouvier’s final claim related to moral rights. She argued that as an author of
The Substitute as a dramatic work, she enjoys moral rights; and that through the
seatbelt sequence in the Safety Video, EA did an act that resulted in a material
alteration or distortion to The Substitute that was prejudicial to Ms Bouvier’s honour
or reputation. Because I have held that Ms Bouvier is not an author of the dramatic
work, this claim must fail. However, even if she had been an author, I would have held
that although there was a material alteration or distortion, there was no prejudice and
hence no infringement under section 96 of the Act.

[40] Mr Tiny argued that in considering whether there has been prejudice, I need to
take subjective considerations into account, in particular when considering prejudice
to honour. Mr Tiny pointed me to Boomerang Investments, where Perram J of the
Federal Court of Australia observed that the phrase honour or reputation ‘involves
two distinct concepts and it is not a composite expression’: para 400. Perram J
(speaking in obiter) observed that the relevant conduct of the defendants, being the
use of a modified version of a line from the song ‘Love is in the Air’ in advertising for
Air France, did not disclose any harm to reputation, which in Perram J’s view was
‘something which can be objectively determined’. In contrast, Perram J was not
prepared to hold that there was no prejudice to honour. Mr Tiny drew my attention
to para 407:

I therefore accept that Mr Vanda’s sense of honour was prejudiced by the

change in the lyrics and I make the same finding in relation to Mr Young.
Although I am not sure my sense of honour would be offended by having the
lyrics of a song changed, I have never written a song and the question is whether
Mr Vanda and Mr Young’s sense of honour is an objectively reasonable one. In
my view, it is. That would be sufficient to establish derogatory treatment … as
it requires prejudice to honour or reputation.

[41] Mr Tiny referred to evidence from Ms Bouvier, which I accept, that she was upset
by EA’s use; considered the Safety Video to be borderline advertising; did not agree
with EA’s ‘jingoistic’ brand values; and would never have agreed to such a use.

[42] Ms Jam argued that honour and reputation should both be judged objectively,
lest moral rights be used as a tool of censorship. She argued that allowing subjective
considerations would create uncertainty in the law – to use Boomerang Investments
as an example, how would a user know whether the lyrics they wished to modify were
penned by a person who wanted great control over their work or someone who had
a more relaxed viewpoint? Finally, Ms Jam argued that it would be problematic if an
act that did not infringe copyright due to fair dealing for the purpose of parody or
pastiche was held to contravene the integrity right (bearing in mind that the
permitted acts in Chapter II of the Act do not apply to moral rights in Chapter III).

12
[43] I found Ms Jam’s submissions to be compelling, in particular her point about the
need for symmetry between copyright and moral rights. Like Perram J in Boomerang
Investments, I cannot see how anyone would have thought less of Ms Bouvier (or Ms
Webb) on account of the Safety Video. Furthermore, the video was a tribute to The
Substitute, and in no sense an insult or objectively unsavoury. As such, I would have
found that there was no derogatory treatment by EA.

Justice Chen-Wishart made orders dismissing the copyright and moral rights claims. The
parties were granted leave to appeal to the Court of Appeal in relation to the conclusions
on the following issues:

• Whether The Substitute is protected as a dramatic work.

• (Assuming the answer to this question is yes) Whether Ms Bouvier is an author of
that work.
• Whether Takeoffs copied a substantial part of The Substitute.
• Whether EA’s dealings with Takeoffs and (if Ms Bouvier is an owner of copyright in
any dramatic work) the Safety Video were fair dealings for the purpose of pastiche.
• (Assuming Ms Bouvier is an author of any dramatic work) Whether EA infringed
Ms Bouvier’s integrity right.

13
Oxford International Intellectual Property Moot 2023

Copyright Act 1997 – extracts

Part I COPYRIGHT

Chapter I SUBSISTENCE, AUTHORSHIP, OWNERSHIP & RIGHTS

Section 1 Interpretations

‘Dramatic work’ includes a work of dance or mime.

‘Film’ means a recording on any medium from which a moving image may by any
means be produced.

‘Producer’, in relation to a sound recording or a film, means the person by whom the
arrangements necessary for the making of the sound recording or film are
undertaken.

Section 2 Subject matter of copyright

(1) Subject to this Part, copyright subsists in the following types of work:

(a) original literary, dramatic, musical and artistic works;

(b) sound recordings, films and broadcasts; and

(c) the typographical arrangement of published editions.

(2) Copyright does not subsist in a literary, dramatic, musical or artistic work
unless and until it is recorded in writing or some other material form; and
references in this Part to the time at which such a work is made are to the time
at which it is so recorded.

(3) It is immaterial for the purposes of subsection (2) whether the work is
recorded by or with the permission of the author.

Section 8 Authorship

(1) In this Part, ‘author’, in relation to a work, means the person who creates it.

(2) That person shall be taken to be—

(a) in the case of a sound recording, the producer;

(b) in the case of a film, the producer and the principal director;

14
(6) In this Part, a ‘work of joint authorship’ means a work produced by the
collaboration of two or more authors in which the contribution of each author
is not distinct from that of the other author or authors.

(7) A film shall be treated as a work of joint authorship unless the producer and
the principal director are the same person.

(8) References in this Part to the author of a work shall, except as otherwise
provided, be construed in relation to a work of joint authorship as references
to all the authors of the work.

Section 9 Exclusive rights

(1) Copyright, in relation to a literary, dramatic or musical work, is the exclusive

right:

(a) to reproduce the work in a material form;

(b) to publish the work;

(c) to perform the work in public;

(d) to communicate the work to the public;

(e) to make an adaptation of the work;

(f) to do, in relation to a work that is an adaptation of the first-mentioned

work, any of the acts specified in relation to the first-mentioned work
in subparagraphs (a) to (e), inclusive.

(4) Copyright, in relation to a film, is the exclusive right:

(a) to make a copy of the film;

(b) to cause the film, in so far as it consists of visual images, to be seen in

public, or, in so far as it consists of sounds, to be heard in public;

(c) to communicate the film to the public.

Section 10 Infringement of copyright

(1) Subject to this Act, the copyright in a copyright work is infringed by a person
who, not being the owner of the copyright, and without the licence of the
owner of the copyright, does in Erewhon, or authorises the doing in Erewhon
of, any act comprised in the copyright.

15
(2) References in this Part to the doing of an act comprised in the copyright in a
work are to the doing of it:

(a) in relation to the work as a whole or any substantial part of it; and

(b) either directly or indirectly.

Chapter II PERMITTED ACTS

Section 45A

(1) Fair dealing with a work for the purposes of caricature, parody or pastiche
does not infringe copyright in the work.

Chapter III MORAL RIGHTS

Section 90 Definitions

(1) For the purposes of this chapter, ‘author’, in relation to a film, means the
director of the film.

Section 95 Author’s right of integrity of authorship

(1) The author of a work has a right of integrity of authorship in respect of the
work.

(2) The author’s right is the right not to have the work subjected to derogatory
treatment.

(3) “Derogatory treatment”, in relation to a literary, dramatic or musical work,

means:

(a) the doing, in relation to the work, of anything that results in a material
distortion of, the mutilation of, or a material alteration to, the work that
is prejudicial to the author’s honour or reputation; or

(b) the doing of anything else in relation to the work that is prejudicial to
the author's honour or reputation.

(5) ‘Derogatory treatment’, in relation to a film, means:

16
 (a) the doing, in relation to the film, of anything that results in a material
distortion of, the mutilation of, or a material alteration to, the film that
is prejudicial to the maker's honour or reputation; or

(b) the doing of anything else in relation to the film that is prejudicial to
the honour or reputation of the maker of the film.

Section 96 Infringement of the right of integrity of authorship

(1) A person infringes an author’s right of integrity of authorship in respect of a

work if the person subjects the work, or authorises the work to be subjected,
to derogatory treatment.

(2) If a literary, dramatic or musical work has been subjected to derogatory

treatment of a kind mentioned in paragraph (a) of the definition of derogatory
treatment in section 95(3) that infringes the author’s right of integrity of
authorship in respect of the work, a person infringes the author’s right of
integrity of authorship in respect of the work if the person does any of the
following in respect of the work as so derogatorily treated:

(a) reproduces it in a material form;

(b) publishes it;

(c) performs it in public;

(d) communicates it to the public;

(e) makes an adaptation of it.

(4) If a film has been subjected to derogatory treatment of a kind mentioned in

paragraph (a) of the definition of derogatory treatment in section 95(5) that
infringes the author’s right of integrity of authorship in respect of the film, a
person infringes the author’s right of integrity of authorship in respect of the
film if the person does any of the following in respect of the film as so
derogatorily treated:

(a) makes a copy of it;

(b) shows it in public;

(c) communicates it to the public.

17
Oxford International Intellectual Property Moot 2023

Cases cited by Justice Chen-Wishart

Norowzian v Arks (No 2) [2000] FSR 363 (Court of Appeal of England & Wales)

Slater v Wimmer [2012] EWPCC 7 (Patents County Court)

Aalmuhammed v Lee, 202 F 3d 1227 (9th circuit, 2000)

Norowzian v Arks Ltd (No 1) [1998] FSR 394 (High Court – Chancery Division)

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 (Federal Court of
Australia)

Pelham GmbH v Hütter (C-476/17) [2019] ECDR 26 (Grand Chamber)

Shazam Productions Ltd v Only Fools The Dining Experience Ltd [2022] EWHC 1379
(IPEC)

18