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04 April 2023
Two recent High Court cases on copyright infringement show how difficult it can be to prove that someone has copied your work. The decisions give creators, producers and broadcasters further insight into what is required to prove copyright infringement (and breach of confidence) in film and TV.
In the BBC claim, the claimant argued that there were substantial similarities between the plots in her works and a BBC forensic pathology series that could not be explained by coincidence. The Court disagreed: the claimant’s work was a standalone plot, whereas the BBC’s series involved several existing characters with roles that could not have been copied because they were part of a series that had been broadcast before the claimant’s works were written.
Furthermore, screenplays use common basic themes. Similarities had to go beyond common tropes such as revenge, jealousy or power. In both stories the protagonists had to overcome an evil force. There were some common words or expressions. When it was dark, a character switched on a light. None of those things was “ copying”: they were dramatic depictions of normal human behaviour.
Importantly, the writer couldn’t show that the BBC had access to her works. If they didn’t have access and therefore hadn’t even seen them, then they couldn’t possibly have copied them and there was neither breach of confidence nor copyright infringement.
In the John Lewis case, a self-published children’s author claimed copyright infringement by a John Lewis 2019 Christmas TV ad and spin-off book about a dragon named Excitable Edgar. The author said there was a striking similarity to her book Fred the Fire-Sneezing Dragon, self-published in 2017. However, she failed to prove on a balance of probabilities that any of the John Lewis creative team saw Fred until after the 2019 ad aired and Excitable Edgar was launched.
More to the point, the John Lewis team began pitching ideas about a lonely dragon a year before the Fred book was published. Both dragons were sad characters unable to control their fire-breathing abilities, but that was the extent of the similarity. Arguably many dragons are depicted like this, including Idris the Dragon in the famous Ivor the engine series. The author lost and was asked to publish the judgment on her website.
At any time, somewhere in the world, it is quite possible that someone is writing something similar to you. That is why many production companies do not accept unsolicited material or require an author to submit via an agent or lawyer: to avoid any claims.
Successful copyright or breach of confidence claims need to show access to the alleged copied work, and that any similarities are so substantial that a reasonable person would believe that one work had been copied from the other.
If you have any queries or concerns about copyright infringement or breach of confidence, please contact Brian Levine on 01935 846 000 or email him at brian.levine@battens.co.uk.
