- Guinness and one of its agencies were this week accused in the High Court of ripping off a director's promotional film for a national TV campaign.
The ruling by Mr Justice Rattee in the lawsuit being brought by Mehdi Norowzian is expected to become a landmark by clarifying what rights commercials directors have over their ideas.
Advertising professionals and even experts in choreography were scheduled to give evidence at the hearing, due to last two weeks, into the claim provoked by a 1995 commercial -- called Anticipation-- showing a drinker dancing maniacally around a pint of Guinness as it settles.
The ad was originally produced for local use but was later adapted for use across the UK where its popularity caused its soundtrack music to enter the charts.
Norowzian is suing Arks, the Dublin agency that produced it, Guinness Brewing Worldwide and its Guinness plc parent for alleged copyright infringement. The agency and Guinness deny any wrongdoing.
Norowzian claims Arks made the commercial -- which he says was copied from a short film called Joy which he made for his showreel -- after he had rejected the agency's offer to him to direct it.
After the judge had watched both films, Christopher Floyd QC, representing Norowzian, told him: "Evidence will show that a huge number of people seeing the commercial believed my client had directed it."
He said Norowzian had refused to direct the film "because he doesn't want to be seen to be repeating old work. But that's exactly the effect of Guinness using the film without his consent and will damage his reputation with the people who give him his livelihood as a director."
According to Floyd, Norowzian was sent a storyboard for the commercial, which was based on Joy, in early February 1991 but he declined to take part in the project. Faced with rejection, Arks shortlisted Richard Sloggett to direct the commercial but eventually settled on its third choice, Ritchie Smith of LittleBird.
Meanwhile, Guinness had been "charmed" by the idea of the commercial and gave it the go-ahead. Floyd claimed Smith produced his own interpretation of the idea but was "brought into line" by Arks which had already sold the Joy concept to its client.
Smith was shown Joy by the agency to illustrate what it wanted. He later made a test video which used Joy with a pint of Guinness superimposed on it.
By the end of the following month the agency was "locked into a course of conduct which would lead it into an infringement of copyright," he told the court.
A storyboard of the proposed ad along with Norowzian's film were shown to research groups whose membership, by coincidence, included the actor Joe McKinney, who was later picked to feature in the commercial.
Floyd claimed that, after it had been shot, LittleBird consulted its solicitors. The production company was told that copyright did not subsist on ideas and that, as long as the commercial was produced independently, there were substantial grounds for defending any action in Ireland.
But the solicitors were not told that Norowzian had withheld his consent, and that Joy had been used to guide the director and coach the actor. "The claim that the work was created from scratch is not supportable on the evidence," Floyd said.
He also referred to a BBC TV interview given by Brian Grant, the Arks chief executive, who claimed the sole inspiration of the commercial was a pop video and that Norowzian's film was not original but was inspired by Mr Bean.
During the hearing the judge rebuked Norowzian's legal team over what he said were differences in the sworn statements and evidence given by senior creatives called to support him.
Questioned by Peter Prescott, counsel for Arks, Steve Paskin, of M&C Saatchi, withdrew the claim in his statement that Joy and Anticipation were "the same" when he had meant "similar".
"I believe this is a complete waste of time," Prescott retorted while the judge was critical of what he said were "witnesses being asked to confirm statements which it's perfectly obvious are not true."
The judge also questioned why Norowzian had taken so long to pursue his action -- "He has been saving up", Floyd replied -- and why Ogilvy & Mather , then the Guinness agency in Britain, was not being sued as well. Floyd claimed there was "nothing sinister" in not suing O&M but Norowzian was concerned not to increase costs. "It's very strange," the judge commented.
The hearing continues.