In Slater v Wimmer [2012] EWPCC 7, a cameraman claims copyright infringement after a skydiver provided some footage of what was billed as “the first tandem skydive over Mount Everest” to a Danish television show. As an aside, it turns out the skydive occurred about 20 km away from Everest and the adventure company that organized the excursion went bust amidst scandal and fallout from angry creditors and customers.

Facts

Per Wimmer, the defendant and cross-claimant and one of the skydivers, claimed that he was entitled to reproduce and licence the work. He also made a cross claim for infringement after Stephen Slater, the cameraman and plaintiff, published some footage on YouTube. Wimmer, an investment banker and thrill seeker, paid for Slater’s trip and most of his costs. Inconveniently, there was no contract setting out arrangements or addressing copyright ownership.

Implied Term?

The first pleading was that the footage was produced pursuant to a contract with an implied term regarding ownership of IP. Justice Birss found there was no agreement addressing IP with the intermediate production company that recommended Slater. Though there was no written contract, Birss J found that there was an implied contract between Slater and Wimmer based on the agreement to exchange an obligation to film for footing the costs of the trip. Regardless, no implied term addressing copyright was found because there was no evidence that the issue was ever raised with Slater.

Joint Authorship: Who’s the Producer?

In the UK, as in Canada, the author is the presumptive first owner of copyright, unless the work is produced under a contract of employment, and the author is the person who creates the work. Under the UK copyright regime, both the producer and director of a film are authors, they may be the same person; if separate people, they are joint authors (Copyright, Design and Patents Act, 1988 (UK), c 1, s 9(2)(ab)). “Producer” is defined as “the person by whom the arrangements necessary for the making of the … film are undertaken.” “Director” is undefined.

Birss J denied Wimmer’s claim that he was a director, finding that only Slater “decided where to point the camera …[and] settings (aperture and so on) at any stage” [73]. As for who is the producer, Birss J highlights that determining who is the producer is “highly fact sensitive” and, after canvassing the case law, writes that it “does not simply refer to the person who made the film, it focuses on the person undertaking the necessary arrangements to do so.” Wimmer was found to be the producer and therefore a joint author of the work because he footed Slater’s travel costs and arranged the provision of the filming equipment.

As joint authors they are unable to reproduce the work without each other’s consent and therefore each infringed each other’s copyright. Ironically, this finding does not end the dispute so much as further entrench it.

Comments

On the same facts in Canada, Wimmer likely would not be found a joint author because each author must contribute inseverable, substantial, original expression and Wimmer hadn’t done so. Also, Canada has no unique authorship provision with respect to film. However, Wimmer may have a stronger claim that the work was produced under a contract of service, as opposed to a contract for service, and, as such, was made in the course of employment. As the employer, he would be the first owner of copyright (Copyright Act, RSC 1985, c 42, s 13(2)).

The common law test for employment takes note of things like ownership of tools. Wimmer arranging for Slater’s camera equipment weighs in favour of finding an employment relationship. Under Professor Vaver’s test for “made in the course of employment,” Slater clearly would have breached his duty of loyalty, to the extent it existed, if he failed to film Wimmer’s dive, which implies a contract for service. On the other hand, as Birss J highlighted, Wimmer had no creative control over Slater’s camerawork, which implies he was an independent contractor. As well, Slater took time off from his full time job to go on the expedition where he filmed everything, not just Wimimer’s dive.

The take away point from this case is universal and unsurprising: nip IP issues in the bud by writing contracts.

Gossip

Here’s a BBC news story on the expedition and its organizer, Nigel Gifford, entitled “Skydive Everest Scam.” Much of the footage of angry tourists was provided by Stephen Slater who clearly filmed more than just skydiving.

Kalen Lumsden is a JD candidate at Osgoode Hall Law School.

Posted in Copyright, Infringement, Licensees, Originality, Ownership, UK