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RULING
handed down in Stockholm on 18th March 2008
Case No:
T2117-06
PLAINTIFF
TV4 AB, 556242-7152
115 79 Stockholm
Legal representative: Peter Danowsky
Danowsky & Partners Legal Chambers KB
Box 16097
103 22 Stockholm
OPPOSING PARTIES
1. The estate of Vilgot Sjöman
2. Claes Eriksson
Legal representative for both: Håkan Sjöström
Glimstedt lawfirm AB
Box 2259
403 14 Gothenburg
SUPREME COURT
Postal address:
Box 2066
103 12 Stockholm
Tel:
08-561 666 00 Office Hours: 08:45-12:00, 13:15-15:00
Fax:
08-561 666 86
Email: hogsta.domstolen@dom.se
www.hogsta.domstolen@dom.se
THE CASE
Infringement of copyright
Svea Court of Appeal ruling on 12th April 2006 in case no. T 451-05
Court of Appeal ruling see Annexe
DECISION
The Supreme Court confirms the court of appeal’s ruling.
TV4 AB shall compensate Claes Eriksson for legal expenses in the Supreme Court
to the extent of one hundred and fifty-two thousand four hundred and sixty
(152,460) kronor, of which 137,400 is for representative’s fees, including
interest as per § 6 of Interest Act from the day before the Supreme Court’s
ruling until payment is made.
TV4 AB shall compensate the estate of Vilgot Sjöman for legal expenses in the
Supreme Court to the extent of one hundred and fifty-one thousand four hundred
and sixty (151,460) kronor, of which 137,400 is for representative’s fees,
including interest as per § 6 of the Interest Act, from the day before the
Supreme Court’s ruling until payment is made.
CLAIM IN THE SUPREME COURT
TV4 AB has claimed that the Supreme Court dismisses Claes Eriksson’s and Vilgot
Sjoman’s claim advanced at the District Court. TV4 has further urged that the
Supreme Court order Claes Erikssson and the estate of Vilgot Sjöman to
compensate the company’s court expenses in the district court and court of
appeal with the amounts there claimed.
Claes Eriksson and the estate of Vilgot Sjöman have disputed the claims.
The parties have claimed compensation for legal costs in the Supreme Court.
OPINION OF THE COURT
The parties have cited the same circumstances as in the court of appeal in the
Supreme Court. The Supreme Court has held the main proceedings. The hearing in
the court of appeal with Claes Eriksson, Vilgot Sjöman and Mats Örbrink, and the
hearing at the District Court with Kjell-Åke Andersson, Kjell Grede and Astrid
Söderbergh Widding have been presented through playback of the tape recordings.
The Supreme Court had sight of the recorded films in question - Claes Eriksson’s
“The Shark who knew too much” and Vilgot Sjöman’s “Alfred” – through playback of
video recordings including the advertising inserts.
In § 3 clause 2 of the Act (1960:729) on copyright for literary and artistic
works (the Copyright Act) it is prescribed that a work may not be changed so
that the author’s literary or artistic reputation or individuality are damaged.
Neither may the work be made available to the general public in such a form or
in such a context that is in the stated way injurious to the author. According
to the third part of this section of the Act the author can concede his right
with binding effect only insofar as it concerns an application of the work
limited in type and scope. From §54 clause three of the Copyright Act it follows
that anyone who wilfully or negligently undertakes actions, which imply
infringement of copyright, shall compensate the author or his assignee for
losses, suffering or other detriment ensuing from that action.
The dispute concerns the interruptions for advertisements, which occurred when
TV4 transmitted both the films. What is contentious between the parties is
whether the interruption constitutes an infringement of the author’s moral
rights, whether any concession of this right was granted, and whether TV4 acted
negligently.
TV4 has asserted that the advertising interruption during broadcasts occurred in
conformity with the legislation and practice based on the so-called TV directive,
the council directive 89/552/EEG of 3rd October 1989 concerning co-ordination of
certain conditions stipulated in the laws of the member states, and other
conditions concerning implementation of broadcasting activity for television,
amended by the European Parliament and Council Directive 97/36/EG. In Sweden the
question of advertising interruptions in the radio and TV legislation (1996:844)
is governed, insofar as is now in question, as amended in 2002, on the basis of
the TV directive in its amended wording. According to Ch. 7 § 8 of this Act,
adverts in TV broadcasts must be transmitted between programmes, but, according
to § 7a, they may under certain conditions also be broadcast during such content
as feature films, but only in such a way, according to § 7, that – with
consideration for natural breaks and the broadcasting length and nature of the
programme – the integrity and value of the programme or the rights of the
copyright holder are not violated. From the preparatory work on amendment to the
law it is evident that the aims were matters of competition and consumer policy,
more specifically to overcome the competitive disadvantages for Swedish
programme companies relative to foreign ones, to which the regulations then in
force led, and at the same time reduce the disruptions that commercial TV
advertising breaks involve for the public (prop. 2001/02:82 page 11). In the
preparatory works it is emphasised that the change in law does not influence the
copyright regulations and that an injurious change or an interruption to a film,
to the extent that follows from agreement or applicable legislation, even in the
future will require
the rights holder’s consent (a. prop. page 13). Before the change, the position
was that the programme could not be interrupted by advertising broadcasts; they
could however be transmitted in longer breaks within sports programmes, in
breaks within programmes structured around performances and with events where
breaks occurred for the public as well, and between segments of programmes
consisting of finished-off parts; in feature films no advertising interruptions
were allowed (prop. 1995/96:160 p. 122 ff, compared with prop. 1990/91:149 page
102 ff.).
The examination of whether an action taken in connection with a film being shown
on TV violates the author’s moral rights must therefore take place regardless of
the public legislative regulations in the radio and TV legislation.
TV4 has stated that advertising breaks do not mean that the film interrupted is
changed, as § 3 clause 2 of the Copyright Act implies.
What is typical of a film work is that ongoing progress, narrative, and the
atmosphere created for the characteristic association for the feature film of
pictures and sound belong, at a certain pace, to the creative elements in the
work. Advertising interspersions break into the progress of the feature film and
into its atmosphere. A feature film that is shown with advertising breaks must
therefore by this very fact be considered as having been altered, in the sense
meant in § 3 paragraph 2 of the Copyright Act. It need not therefore be
considered whether the advertising insertion also means that the work is
reproduced in an unfamiliar context.
Hereafter the question is whether the change is injurious to the author’s
reputation or distinctive character. In the Authorial Rights Committee’s report
SOU 1956:25 Copyright (reproduced in NJA II 1961 page 63 ff.) among other things
the following statement is made concerning the condition in § 3 paragraph two.
In assessing to what extent the changes undertaken can be considered as
injurious to the author the case must be seen from this
point of view, but otherwise an objective yardstick is to be applied. The author
is also entitled to protection against processes which, even though not
detrimental to his reputation in the eyes of others, constitute an assault on
the integrity of the work and violate the affection he as the artist harbours
for the work he has created. The assessment must be made from the starting point
of the conditions within the type of art one is dealing with and with due
consideration for the circumstances in the particular case. Also externally
insignificant changes can misrepresent the work. The requirements are not as
strict on reproduction of literary or musical works of lower value, though here
too the author should be protected against more serious interference. The
purpose of the action taken is also significant. One should also take into
consideration whether the reproduction claims to present the work in its
original form, or whether it is self-evident that the work is not being
reproduced in original form. – In the proposition the head of department agreed
in essence with the committee’s statement. Concerning protection for the
author’s distinctiveness, it is stated that one should also keep in mind
processes which – even though they may not perhaps damage the author’s
reputation – nevertheless are injurious to his personality, as it has found
expression in his work (NJA II 1961 page 73) – This statement still holds true
in law.
As stated in the district court’s ruling, TV4 inserted interruptions for
advertisements when showing the two feature films, in two instances in Claes
Eriksson’s “The Shark who knew too much” and in three instances in Vilgot
Sjöman’s “Alfred”. Each interruption is introduced with a vignette with musical
signature and including the word “Advertisement” (Reklam), and a voice saying
that “the feature film continues in a moment”, and the interruption then
finishes with a vignette with music and the words “The feature film now
continues”. On one occasion the vignettes got mixed up. Each interruption,
lasting about five minutes, contained
about ten advertising slots for goods and services directed at consumers. The
interruptions occurred in connection with scene changes or a change in the
narrative of the film. The advertising interruption was at a somewhat higher
noise level than the feature film.
Claes Eriksson has declared that he considers the advertising breaks to be
injurious because extraneous film pictures and sound come into his film without
his permission and disturb his carefully considered length and rhythm, and that
the advertisements’ messages contrast starkly with the moral of the film and its
satirical description of a hysterical pursuit of money. Vilgot Sjöman stressed
that his film has a sort of dreamy, hesitant pace, which is in conflict with the
noisy and disjointed advertising inserts, and that the film is enacted in a
Swedish and European 19th century speech environment, which he went to very
great pains to re-create.
The judgement on whether the advertising interruption in a feature film violates
the author’s reputation or distinctive character must be made on the basis of
the criteria stated a short time ago. This means that the TV viewers’ perception
of the advertising interruption in general as disruptive must not be taken into
consideration. The interest of viewers is considered to be met through the
mechanism of public legislation.
A starting point is the circumstances within the type of art in question. It is
apparent from the expert evidence presented, such as Claes Eriksson’s and Vilgot
Sjöman’s information that it is characteristic of film works that the creative
work – including production, direction and cutting – aims at an overall
experience, which leads the audience to participate in the narrative of the film
in time and space.
The fictitious period in which the film takes place is complex and unique for
each film. Interruptions to a feature film mean that the intended overall
experience is broken up, and the audience risks losing the thread of the
narrative or missing allusions forwards or backwards in
the narrative. Spatially an interruption means a change from the film’s
environment to other environments and moods created by the advertising slots.
Even if the advertising break occurs in connection with the film’s scenes or
environment being changed, the director’s intended interplay between the film’s
different scenes is broken through the insertion of completely different
environments and occurrences. Interruptions for advertisements also mean that
the film’s actual length is prolonged for the audience; the length of the film
is a not insignificant part of the work.
In reaching judgement the nature and significance of the work should also be
considered from an artistic point of view. A feature film -–whether a comedy or
a tragedy in its aim – in the form of a long film must be regarded as more
sensitive to encroachment than a film of the nature of a short story or an
episode, built up of mutually independent, complete parts that are not
necessarily intended to be seen in a reciprocal connection, or a film of a
non-narrative genre, like for example an instructional or training film.
Irrespective of the artistic level, ambition and propensities of a feature film,
the occurrence of advertising slots normally means that the continuity and
dramatic nature of the film is broken and that the extraneous film pictures
inserted into the work are bound to harm the author’s distinctive nature.
The purpose of the break must also be considered. The advertising interruption
occurs for commercial purposes and the intention is to draw the audience’s
attention away from the film to the advertising slot. The interests that lie
behind the advertising interruption are, as the court of appeal found, not such
that on establishing what can objectively be considered acceptable routes across
the author’s interest that his work is not reproduced in a way injurious to his
intellectual rights.
Because of the stated sine qua non that the courts have supported, the
advertising interruptions in the shows concerned in this case are considered to
constitute a violation of the author’s distinctive nature, contrary to the
condition in § 3 paragraph two of the Copyright
Act. The Supreme Court considers on the other hand, like the other courts, that
the interruption does not violate Claes Eriksson’s or Vilgot Sjöman’s literary
or artistic reputation.
The Supreme Court confirms the judgement of the lower courts that Claes Eriksson
and Vilgot Sjöman have not conceded their moral rights as far as the
interruption to the films is concerned, and that the infringement has occurred
through negligence.
The Court of Appeal’s ruling is therefore confirmed.
[Signatures:
Gertrud Lennander, Leif Thorsson, Ella Nyström,
Anna Skarhed and Lena Moore]
The following participated in the decision:
Justice of the Supreme Court Gertrud Lennander, Leif Thorsson (reporter), Ella
Nyström, Anna Skarhed and Lena Moore
Presiding review secretary: Håkan Lundquist
[Signature: Håkan Lundquist]
Certified true copy conforming to the original
[Signature: Ella [illegible]]