Pushing the boundaries of copyright law

Laurie Heizler, Partner in the Business Law team explores the benefits of intellectual property to your business and how to maximise its value .

Copyright is a continually evolving intellectual property (IP) right. It arises in many different circumstances and protects literary, artistic, dramatic and musical works. When copyright arises, it is owned by authors, image makers, software code writers and TV programme producers.

How may copyright be infringed?

Copyright is infringed where there is reproduction of another person’s creative work or a substantial part of it in a material form. This usually implies literal copying of a significant part of an original work. But where the reproduction is not quite so obvious, the scope of “works” protected by copyright can sometimes be ambiguous.

There have been some noteworthy recent examples:

Pasternak-v-Prescott [2022] EWHC 2695 (Ch)

In this case, Anna Pasternak, whose great uncle was the poet and novelist Boris Pasternak the author of Doctor Zhivago, sued Lara Prescott arguing that Prescott’s novel The Secrets We Kept infringed the former’s alleged copyright in the “selection, structure and arrangement” of facts and incidents depicted in her book entitled Lara: The Untold Love Story that Inspired Doctor Zhivago.

It is important to note that there was no verbatim copying of Anna’s work by Lara. The material part of the claim was that the selection, structure and arrangement of historical facts in a work of non-fiction was infringed by a novel based on such facts.

The case is comparable with Baigent-v-Random House [2007] EWCA Civ 247, in which it was alleged that Dan Brown’s famous novel The Da Vinci Code infringed copyright in the claimant’s book The Holy Blood and the Holy Grail. This was itself a purported historical account of aspects of the life of Jesus. The claimants failed to show that there was any copyright in a chronicle of allegedly historical events and situations.

Anna’s arguments were generally muddled and ill-founded. In the absence of verbatim copying of text, the “selection” copyright infringement argument was probably all that remained. She was further compromised by the fact that she herself had incorporated verbatim copying of earlier sources in her own book. 

Just as in the Baigent case, the claim failed because copyright does not protect ideas but only the substance of the actual wording used to describe them. But the detailed analysis in this case of all the documented facts and their arrangement did not reveal any specific copying. Despite some negligible use by Lara of a few identical words and phrases from Anna’s book, no protectable aspect had been infringed.

Anna now wants to change the law to give better protection to the authors of non-fiction works.

Shazam Productions Ltd-v-Only Fools The Dining Experience Ltd [2022] EWHC 1379 (IPEC)

A much less predictable result emerged from this case. Shazam owned copyright in the scripts devised by John Sullivan for the hit TV series Only Fools and Horses. The defendants were the originators of a “dining experience” in which customers would interact with actors playing the roles of Del Boy and Rodney in just the same style and manner in which they were played by the original cast. Although the scripts were used by the defendants were new, the main characters precisely reflected the personality templates devised by John.  The same back stories and catch phrases they used (and were now being reproduced) were easily discernible from the original scripts. The representation of the characters (particularly Del Boy who was used as a test example) was objective and exact.

Can copyright protect a fictional character?

Before copyright law was reformed in the EU, a fictional character like Del Boy could not of itself constitute a copyright work. But EU law retained in English law post-Brexit provided the relevant two-part test for copyright infringement used here. In Shazam the court found that the substance of Del Boy’s character was “original” because it reflected the creativity of John Sullivan, and “identifiable” because the defendant’s representation of Del Boy’s style, appearance, character and catch-phrases was expressed in a way that amounted to an effectively complete reproduction.

Conclusions

Pasternak very much turned on its own facts and failed on these facts. But in theory, there could be other cases where assemblages of facts (or more likely conjectural facts with some innate originality) that are closely copied by an infringing work could fulfil the originality and identifiability criteria and so infringe copyright.

Shazam illustrates that copyright can subsist in imaginary characters who are well-drawn with abundant detail. It would however be naïve to think that the distinction between (copyright-protected) expressions and (copyright-unprotected) ideas will disappear. The case has wider implications for TV concepts such as reality programmes, quizzes and game shows. Making such formats very prescriptive with as many fixed elements as possible reinforces the likelihood that overall copyright will vest in them.

For more information on all IP matters, please contact Laurie at laurie.heizler@twmsolicitors.com.

For further details about our Business Law services, click here.

Laurie Heizler, Partner in Business Law

Laurie Heizler, Partner in Business Law

Laurie Heizler, Partner in the Business Law team explores the benefits of intellectual property to your business and how to maximise its value.

Pushing the boundaries of copyright law

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