- The legal controversy over a Guinness TV commercial, which is claimed to have exposed a serious flaw in Britain's copyright laws, is to go to the Court of Appeal.
The director Mehdi Norowzian has lodged an appeal after failing to persuade a High Court judge that the brewer and one of its agencies ripped off his idea.
The verdict stunned the industry and provoked claims that an anomaly in the law had left commercials directors at the mercy of plagiarists.
Now, Norowzian's lawyers are asking for the ruling to be overturned, claiming that the judge wrongly interpreted the 1988 Copyright Designs and Patents Act, on which it was based.
The courtroom battle in July was over a commercial called "anticipation" featuring a drinker dancing maniacally around a pint of Guinness as it settles. Norowzian alleged that the idea was copied by the Dublin agency Arks from Joy, a short film made for his showreel.
Mr Justice Rattee accepted that Joy had been used as a "point of reference" in the making of the commercial but ruled that, as a film, it was protected by the 1988 act only against mechanical copying.
In his appeal, Norowzian argues that the judge's interpretation of the Act was too narrow. He maintains that Joy qualified as a dramatic work subject to copyright protection, even though it could not be physically performed, danced or mimed, and that copyright should have subsisted in Joy's final edited version.
He says he was trying to protect the finished version of a dramatic work recorded on film, not the film itself, and claims the judge was wrong to disregard similarities in the two films which could only be due to copying.
Norowzian also cites a list of shared features of both films -- from the actor being seen in close-up and long shot alternatively to his eyebrow movements close to camera -- to which he says the judge paid insufficient regard.
At the same time, he alleges the judge either disregarded or failed to give sufficient weight to evidence on the repeated use of Joy throughout the making of "anticipation".
The appeal is expected to be heard within the next 12 months.
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