"Is it a Birss, is it a plane ...?" Skydive litigants crash-land in court

It is a little known fact that video footage taken by an unknown tourist exists of this excited Kat paragliding around the ski resort of Val d'Isère. This Kat has not taken the plunge to try skydiving, nor indeed has she reflected as to whether such a feat should be filmed for posterity. The same could not be said for the recent proceedings between Stephen Slater and Per Wimmer which came before Judge Birss QC in the Patents County Court: Slater v Wimmer [2012] EWPCC 7 (16 February 2012).

The Facts
For reasons that are not apparent to most Kats, Mr Wimmer (left), a Danish financier, celebrity and adventurer, wanted to be the first person to take part in a tandem skydive over Mount Everest. He also wished to film the skydive so that he could include the footage in two films which he was considering making. In mid-2008 Wimmer started to make preparations for such an adventure. First, he engaged Danish cameraman Kenneth Andreasen, who orally agreed to go on the trip on the basis that Wimmer would cover all the travel and living costs but would not pay a salary, and that Wimmer would own all of the IP rights created. Secondly Wimmer wanted to engage an English cameraman so he approached Chris Riley of Wide Eyed Entertainment Ltd. At a meeting with Wide Eyed in August 2008, Wimmer outlined his plans: he would pay the travel and living costs of a cameraman but not a salary and he would own all the IP rights. If any profit was obtained as a result of syndicating the resulting film, once he had recouped his costs he would agree some form of profit-sharing arrangement with Wide Eyed. During the meeting, Riley explained he would not be able to film the skydive -- but would consider a suitable replacement.

Mr Riley later recommended a Mr Slater, a 21 year old documentary film maker and adventure sports enthusiast, and Wimmer accepted that recommendation. At a later meeting on 1 September 2008, Slater was to join the project and Wimmer would pay his costs of the trip but not a salary. Wimmer claimed that he made it clear to Slater at the meeting that the IP would belong to him, not Slater -- a version of events which Slater vehemently denied. Significantly, no written agreement was entered into between them.

The skydive was completed on 6 October 2008. After Slater returned to England he put his footage on a hard drive and sent it to Wimmer. From Slater's point of view this was a gesture of goodwill and an attempt to protect his relationship with Riley of Wide Eyed. Slater assumed that, should Wimmer wish to make use of it, he would get in contact and make a monetary payment.

Wimmer never did get in touch with Slater. Here is a Press Release of Wimmer's experience from his WimmerSpace blog. In August 2010, Slater became aware of a documentary entitled "Wimmer Over Everest". This documentary, put together by Andreasen, was broadcast on Danish television and included 2 minutes and 13 seconds of footage shot by Slater. After several telephone calls which did not resolve the matter, Slater invoiced Wimmer for £3,000 for the use of the footage. Wimmer did not pay and this dispute arose. Slater commenced proceedings for copyright infringement, while Wimmer denied the claim and counterclaimed copyright infringement against Slater, who had included the footage in a YouTube video.

The Law
Judge Birss briefly set out the applicable law (at [11] to [22]). There was no dispute that the footage shot by Slater was a film in which copyright subsisted. Under section 11 of the Copyright Designs and Patents Act 1988 the general rule is that the first owner of copyright is the author (one exception relates to materials created during one's employment). In relation to films, according to section 9(2)(ab), the author is considered to be the producer and the principal director. The term 'producer' in relation to a film is defined by section 178 of the 1988 Act as the person by whom the arrangements necessary for the making of the film are undertaken. The 1988 Act does not define the term 'director'. Under section section 10(1A), a film is treated as a work of joint authorship unless the producer and the principal director are the same person. This general rule can be modified by contractual arrangement between the parties.

The decision
As Judge Birss states (at [55]), the only matter of primary fact which he needed to resolve is what happened at or after the meeting on 1 September 2008: what did Wimmer agree with Slater about IP rights?

Judge Birss QC accepted (at [58]) Wimmer's evidence that his firm policy was always that he would own the IP rights. His Honour also accepted that Wimmer made this clear to Andreasen, Wide Eyed and Riley. However, Judge Birss observed that all took place outside the 1 September 2008 meeting and there was no evidence that Wimmer's policy was explained to Slater at any stage. Accordingly, Judge Birss found (at [59]) that it was more likely that Wimmer did not explain his position on IP rights than that he did so.

Although, as noted above, the term 'director' is not defined by the 1988 Act, Judge Birss QC thought (at [72]) that the correct position was that stated by Laddie Prescott & Vitoria (4th edn at [7.41]). There the authors suggest 'that in most cases the principal director is likely to be the person who had creative control of the making of the film'. On the basis that only Slater decided the camera settings, Judge Birss QC found (at [73]) that Slater was the principal director for the purposes of the 1988 Act.

As for the 'producer', Judge Birss QC found (at [85]) that Wimmer had the best claim to be the person who undertook the arrangements necessary for the making of the film footage. This was because Wimmer decided to undertake the project and arrange for it to be filmed. Wimmer did not just pay for the event: he also paid costs associated with making the film such as paying Slater's travelling expenses. But Wimmer was not merely the banker: the project was his project. The purpose was to create footage of the skydive over Everest. He had also made the arrangements whereby another cameraman, a still photographer and a cinematographer were engaged. He made the arrangements whereby Wide Eyed provided video equipment for Slater.Accordingly, Judge Birss QC found (at [85]) that, in the absence of any contractual provisions to the contrary, the footage in question was a work of joint authorship, the joint authors being Slater as principal director and Wimmer as producer.

In Judge Birss QC's opinion (at [94]), it was not necessary to imply any terms into the agreement between Wimmer and Slater as far as the UK copyright is concerned. A contract between producer and director could contain express terms about ownership and they would take effect -- but there were none in this particular case. However, to imply terms into such a contract without more seemed to Judge Birss QC to be entirely unnecessary when Parliament has provided for the consequences already in the 1988 Act when no agreement has been reached --ie that joint authors would be Wimmer as the producer and Slater as the principal director. Accordingly Judge Birss QC found (at [106]) that the parties were co-owners of all the relevant copyrights. Further, they had each reproduced the footage without the consent of the other -- and were both therefore infringers.

The IPKat, who would never consider going skydiving, thinks that this case serves as a timely reminder to make sure that copyright arrangements which depart from the general rule of copyright ownership are recorded in writing. If Wimmer had ensured that his policy regarding IP ownership was written down and agreed to by Slater, he could have avoided this costly and time consuming litigation.

Merpel loves this outcome: two litigants head off to court, out for each other's metaphorical blood, and each is held to have performed non-consensual acts at the other's expense. What a shame they couldn't have seen it coming and settled ...