In the latest example of the courts being asked to consider the extent to which formats can be protected by copyright, the High Court has dismissed a claim for copyright infringement in relation to a comedy series, finding that (a) there was no copyright in the series, and (b) even if there were, it had not been infringed.

Background

In 2013 the Claimant, Joshua Rinkoff (who performs under the name Harry Deansway), decided to create a ‘digital version’ of a live comedy night, ‘Shambles’, that ran in a location in London. As the court put it, Rinkoff “intended to showcase stand-up comedy in an innovative way, combining scenes of live comedy with behind-the-scenes narrative in the form of a sitcom, the intended effect being to immerse the audience in the setting of the live comedy club”. The first six episodes of Shambles were uploaded to Rinkoff’s YouTube channel in 2013, after which a third party financed and produced a further six episodes which were released in 2015.

In 2022, Rinkoff became aware of the impending release of a new series on Dave, Live at the Moth Club (“LATMC”), produced by the Defendant, Baby Cow Productions Ltd (“Baby Cow”). Soon after LATMC was broadcast, Rinkoff’s lawyers wrote a letter of claim to Baby Cow alleging copyright infringement. In addition to pointing to what were claimed to be similarities between Shambles and LATMC in its structure, characters, and plotlines, it was argued that Rupert Majendie, whom the Court described as the “moving force behind LATMC”, was “clearly familiar” with Shambles because he and Rinkoff had known each other for some time.

Later the following year, Rinkoff issued proceedings at the Intellectual Property Enterprise Court. His claim was that Shambles was a dramatic work which consisted of “a number of clearly identifiable features, which, taken together, distinguish it from other shows of a similar type. Those features are connected together in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form”. The features that Rinkoff relied upon were enumerated in the Particulars of Claim and included matters such as the setting, the “blending of fictional scenes involving situation comedy, on the one hand, and actual stand-up performances by both up-and-coming acts and established names filmed in front of a real audience at the club”, the use of camera techniques, and various characters.

For its part, Baby Cow denied that it had copied Shambles. Further, and in any event, it argued that (a) the format relied upon by Mr Rinkoff was not protectable as a dramatic work because it was not designed to be performed, nor capable of being performed, and (b) the two series of Shambles did not have a format identifiable with sufficient precision and objectivity to be capable of being protected as a copyright work.

Judgment

The judgment, delivered by Recorder Amanda Michaels, considers in detail the history behind the development of both Shambles and LATMC, before surveying the law in this area. Reiterating that copyright does not protect mere ideas, the judge then set out what the parties agreed was the test for the subsistence of copyright, namely that:

1. the work must be the author’s own intellectual creation, in the sense that the work reflects the author’s personality, which is the case if the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch; and
2. it must be the expression of the author’s intellectual creation, which requires it to be identifiable with sufficient precision and objectivity.

The judgment proceeded to consider the boundaries of what constitutes a dramatic work for the purposes of the Copyright, Designs and Patents Act 1988, and noted that counsel “could not identify any UK case in which a claim that a format was protected as a dramatic work had succeeded”. Reference was made to a case in Canada which concerned whether the format of a pop music show was protected as dramatic work, but the judge concluded that the decision “was of little help”.

What was of more help to the judge was the summary of the current law as it relates to formats in the leading textbook, Copinger and Skone James, which states the following:

“In a number of reported cases, attempts to argue that copyright is capable of subsisting in the formats of television shows and other similar programmes have failed. Protection has typically been refused on the grounds that there was insufficient certainty as to the content of the work and that it possessed insufficient unity to be capable of performance. The High Court has however held that it is at least arguable as a matter of concept that such formats can be protected as dramatic works, even though any genuine game show or quiz will include elements of spontaneity and events that change from episode to episode. It is of the essence of a dramatic work that it be a uniform work that could be performed. 

 At a minimum, two conditions must be satisfied before a format will be protected in this way. First, there must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type. Secondly, those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form [our emphasis]”.

The judgment goes on to explain that Rinkoff’s pleaded claim was to a format which included no less than eight features “taken together, and forming a coherent whole”. However, a significant difficulty with this argument was that all eight features were not present in each episode of Shambles. Given that Rinkoff’s pleaded case was that the format consisted of “a number of clearly identifiable features, which, taken together, distinguish it from other shows” and that he relied on “the unique combination” of each of the features, the judge concludes that, “if it is right that the pleaded features are not all present in every episode of the show, then the format cannot be found in every episode […] In my judgment this suggests that the format is not a “work” or does not have a fixed form of expression, or both”.

Furthermore, the judge adds that even if all eight features were present in each episode, they “do not have the necessary qualities to amount to a dramatic work which could be protected as a copyright work. In my judgment, the eight features are not connected with each other in a coherent framework, and they do not set out a formula which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. The pleaded features set out general ideas at a fairly high level of abstraction and in my judgment are inadequate to enable anyone to create, perform or reproduce an episode of Shambles. It is equally plain that the pleaded features of Shambles are not organised into a unified work which could be performed which, as Snowden J said in Banner, is the essence of a dramatic work”.

The judge was also invited to consider whether the recent decision in Shazam v Only Fools The Dining Experience left open the question of whether the characters, storylines and an ‘imaginary world’ could, if sufficiently described, enjoy protection as a dramatic work. Whilst not directly offering her view on this, she nonetheless states that the features identified by Rinkoff fell “far short of the level of specificity necessary to satisfy such a test”.

Finally, notwithstanding her finding that Shambles was not capable of being protected by copyright as a dramatic work, the judge briefly considered whether, if she was wrong on that point, LATMC copied a substantial part of Shambles. Whilst the allegations of direct copying were not pursued at trial, it was put to the judge that, as the judgment describes it, “the similarities between the shows were too numerous to be explained by coincidence, and they must have flowed from unconscious copying”.  However, the judge disagreed, finding that “there was no evidence at all to support this theory of indirect copying” and that this was “a wholly speculative line of argument.”

Wiggin represented Baby Cow in the proceedings.

To read the judgment in full, click here.