Tutorial 4: Due 4th May

Issue 1
Was Martin Scorsese’s film “The Swarm” protected under copyright?

Law
Intellectual property (IP) is a form of intangible (unable to be touched) creation such as the
expression of an idea or a trade mark. It is a product of intellectual effort rather than a
physical manufacturing process.

Copyright is the legal right to prevent unauthorised copying of the expression of an idea,
e.g. a book, a song, a movie, or a photograph. Copyright in Australia is regulated by the
Copyright Act 1968 (Cth) (“CA”).

There are three requirements that must be fulfilled in order to show that work is protected:
1. The creation is a ‘work’ or ‘subject matter other than works’;
2. The creation is original;
3. The creation is expressed in a material form.

Requirement 1:
The creation is a ‘work’ or ‘subject matter other than works’ – s32 Copyright Act – extends
protection to ‘works’:
Original works in which copyright subsists            
(1)  Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic
work that is unpublished and of which the author:
(a)  was a qualified person at the time when the work was made; or
(b) if the making of the work extended over a period--was a qualified person for a
substantial part of that period.
(2)  Subject to this Act, where an original literary, dramatic, musical or artistic work has been
published:
(a)  copyright subsists in the work; or
(b)  if copyright in the work subsisted immediately before its first publication--
copyright continues to subsist in the work;

 Literary works – the expression of an idea in the form of text. Eg.) a book, an article,
an email, written information, an advertisement, a manual, song lyrics.
See: Mirror v Queensland (1982)
 Musical works – the musical arrangement of note and sound combinations.
 Dramatic works – such as a show, dance routine, film script.
 Artistic works – such as paintings, photographs, pictures, graphic designs, building or
plans for a building, works of artistic craftsmanship.

However, a creation may not just fall into one category of works or subject matter other
than works – each different component or element of a creation might have different
copyright protection.
Requirement 2:
The creation is original (S32 CA)
• This does not mean that the creation must be different to other creations, only that
it must be the result of the person’s own skill and effort rather than the result of
copying from another source.
• Compilations are protected provided they are original – a minimal degree of
creativity is required.
See: Desktop Marketing v Telstra (2002)
• The requirement of originality only applies to works, not subject matter other than
works (usually adaptations).

Requirement 3:
Creation is expressed in material form
• Facts, information, methods and systems: not protected by copyright unless they are
expressed in material form.
See: John Fairfax v Consolidated (1960)
• It is not the originator of an idea who owns the copyright but the person who first
expresses the idea in material form. The originator of the idea has no rights in the
finished work.
See: Donoghue v Allied (1938)

If all 3 of these requirements are fulfilled. The original work is protected.

Application
Martins film “The Swarm” is a work or subject matter other than works. This can be
established since the film is an original literary work that has been published and therefore
copyright subsists in the work. Therefore requirement 1 is fulfilled.

Furthermore, Martins film falls into more than one category of works or subject matter.
These include literary works (written script), musical works (sound recordings), dramatic
works (film script) and artistic works (pictures/videos). Each different component or element
of a creation might have different copyright protection.

Requirement 2 is also satisfied as Martins creation of the film is original. This can be
established since the film was the result of Martins own skill and effort, it was not copied
from another source.

Requirement 3 can also be satisfied since Martins creation was expressed in material form in
the form of a film. Therefore, his film is protected under copyright laws.

Conclusion
Martin Scorsese’s film “The Swarm” is protected under copyright laws since all 3
requirements are fulfilled.
Issue 2
Has Quentin infringed on Martin’s intellectual property rights in “The Swarm”?

Law
Copyright is infringed when a person exercises the copyright owner’s exclusive rights in
relation to the creation without their permission to do so.

Copyright will be infringed if:

1. A substantial part of the creation is copied;
2. There is objective similarity between the original and the copy;
3. There is a causal connection between the original and the copy.

Requirement 1:
• There is no fixed rule about the precise portion that is copied.
• There is no exact mathematical percentage (%).
• The quality of the part copied will be considered – ask yourself whether it was an
essential/distinctive element?

If the part copied was comprised of insignificant material

– then it may not be an infringement.
But if the part copied was comprised of significant material
– it may be an infringement

Requirement 2:
• If the copy is an exact copy of the original – the copy will be objectively similar.
• The question then is whether a reasonable person would view the copy as similar to
the original?

See: Zeccola v Universal Studios (1982)

Universal owns copyright for the book, script and film of Jaws. An Italian film was produced
called Great White (I’UltimoSqualo). It was held by the courts that the film was not an exact
copy of Jaws, but any reasonable person would detect that the Italian film is similar to Jaws:
Great White Shark attacks and eats people and is destroyed by the hero.

Requirement 3:
• It must be shown that the alleged copy of the original creation is in fact copied and
not created independently.
• To show this causal connection – it must be shown that the maker of the copy had
access to the creation.

Case law has demonstrated that the judicial interpretation of “had access” is that the person
infringing had the opportunity/ability to be able to access the original.

Intention does not matter – It does not matter if the copying was deliberate, accidental,
conscious or subconscious.
Defences and Remedies for Infringement
• A person accused of infringing copyright may seek to rely upon a range of possible
defences, including:
– Insubstantial infringement – E.g.) insignificant copying;
– Fair dealing – for a legitimate purpose and not for competing with the owner
or depriving them of their rightful
See CA ss40-43 and ss103A-104.

Remedies for infringement include: damages, an injunction and account of profits made
from the infringement

Application
The first requirement of infringement is fulfilled. A substantial part of the “The Swarm” has
been copied. Since, the main ideas and most settings and themes have been copied, this
shows that the essential and distinctive elements of the film have been plagiarized.

The is also a subjective similarity between the original and the copy. Similar to Zeccola v
Universal Studios (1982), the film was not an exact copy of “The Swarm”, but any
reasonable person would detect Quentin Tarantino film is extremely similar to “The
Swarm”. This is the case since the whole story line of the film is mirrored just using a rat
instead of a bee which was used in “The Swarm”.

There is a casual connection between the original film and the copy since Quentin Tarantino
had access to “The Swarm” since it was released 23 years before Quentin released his film,
giving Quentin plenty of time to watch “The Swarm”. This proves that Quentin’s creation is
in fact copied and not created independently.

Therefore, all 3 requirements of infringement are fulfilled.

However, there are no defences that Quentin Tarantino could use in this case since it was
not insubstantial infringement nor for a legitimate reason (fair dealings).

Remedies that Martin could seek from Quentin include damages, an injunction and account
of profits made from the film.

Conclusion
To conclude, Martin can bring action against Quentin for infringement of Martins
intellectual property right in “The Swarm”.