Copyright - Molavi v Gilbert and others

Author Stacey Harris Licence CC BY-SA 2.0  Source Wikimedia Commons

 

Jane Lambert

Business and Property Courts, Intellectual Property List (Mr Justice Marcus Smith) Molavi v Gilbert and others   [2023] EWHC 646 (Ch) (23 March 2023)

This was an application under CPR 24.2 (1) (i), by the writer, Virginia Gilbert, BBC Studios Production Ltd and the British Broadcasting Corporation for summary judgment in an action that had been brought against them by the screenwriter Dr Donna Molavi for copyright infringement and breach of confidence. They contended that the claimant had no real prospect of succeeding in her allegation that they had copied her storyline and other material for two episodes of the forensic pathology series Silent Witness. 

Copying can be inferred where the following conditions are satisfied:

• there is an objective similarity between the original work and the alleged copy; and
• the author of the alleged copy had an opportunity to copy the original.

It is then up to the alleged copyist to explain away the similarities.  If he or she cannot do so satisfactorily then copying will be established.  In Molavi, there were plenty of allegations of similarities between the claimant's work and the BBC's but there was no evidence that Virginia Gilbert or the BBC had actually seen Dr Molavi's work.  The most that Dr Molavi could say was that there were substantial similarities between her screenplay and the transmitted programmes that could not be explained by coincidence.

The application came on before Mr Justice Marcus Smith on 2 March 2023. 

His lordship noted that Dr Molavi's allegations of similarity fell into two categories:

(1) Similarities of overall plot.
(2) Similar scenes or events.

The judge directed himself at para [15] of his judgement that similarities of overall plot operate at a higher level of generality than similar scenes or events though he reminded himself that it would be wrong to regard each category as "sealed" from the other.  He added that when considering whether an arguable inference of copying could be drawn from similarities between the claimant's works and the defendants', he "should consider the question in the round, and not in a technical or granular way."

He divided the rest of his judgment as follows:

"(1) Section C describes the relevant works themselves, namely C's Works and Ds' Works.
(2) Section D considers the question of plot similarity, specifically whether it is possible arguably to infer that copying of C's Works in Ds' Works took place.
(3) Section E considers the question of similar scenes or events.
(4) Section F considers the cumulative effect of the points considered in Sections D and E.
Finally, Section G states how I dispose of this application (and the related application for permission to amend)."

His lordship described Dr Molavi's plot in para [17] and the defendants' in para [18]. He said that he had watched the two episodes in question and had made the notes that appear in para [20[.  He then turned to the alleged similarities at [24]. He considered each of the similarities that had been advanced and dismissed each one individually. He concluded at [25] that the plea of inferred copying based upon plot similarities was unarguable. There were no similarities capable of giving rise to the inference pleaded in paragraph [45] of the draft amended particulars of claim.

Dr Molavi also relied on certain detailed similarities that had been annexed to the amended particulars consisting both of linguistic similarities and similarities of the selection and arrangement of narrative details including more similarities of plot.  Having held that the plea of inferred copying based upon plot similarities was unarguable the judge was not strictly bound to consider them since they were pleaded as further allegations to the previous case rather than as an alternative case.

As he had already dealt with plot similarities, his lordship turned to linguistic similarities at para [30],  He held that linguistic similarities per se cannot give rise to an inference of copying. The whole point of language is to enable one person to communicate with another, and so we have commonly understood words and expressions. Using such commonly understood words and expressions is not copying. Such similarities are inevitable between works and can give rise to no suggestion of copying.  

He gave the following examples:

C's Works	Ds' Works
A sequence as follows: 1. A door is opened. 2. A light is turned on in the mortuary. 3. A man in white uniform removes Sara Shenee's body from a freezer.	A sequence as follows: 1. A door is opened. 2. A light is turned on in the mortuary. 3. A person in white scrubs pulls the body of PC Stephen Francis from the drawer

In his lordship's view, this was a hopeless allegation on which to found an inference of copying. Silent Witness had featured scenes in a pathological unit for years. Given that the claimant chose to incorporate a pathological theme, similarities like the above were inevitable.  He selected a few other similar scenes which he arranged in a table and concluded that the detailed similarities case was not arguable, whether viewed individually or collectively. There was no arguable basis for inferring that the BBC had copied any part of Dr Molavi's work.  He, therefore, entered summary judgment for the defendants.

This case illustrates the difficulty of proving copying where non-literal copying is alleged.  The rule that it is enough to prove objective similarity and access to raise a presumption of copying that applies to most other infringements does not work quite so well where the lifting of a character or plot is alleged.  As the editors of the 5th edition of Laddie Prescott and Vitoria note at para 3.72 of the 5th edition of the Modern Law of Copyright, it would be almost inconceivable that two authors should independently compose lengthy passages in identical language or which contain the same collection of detailed incidents. However, it is quite credible for two authors to have the same idea for a plot, character or some other general idea without either referring to the work of the other.  Cases that have succeeded tend to be those where there has been a high degree of similarity between the original and copy such as Holland v Vivian van Damm Productions Ltd [1911–16] MCC 168, CA where Oscar Wikde's play was transformed into a ballet.

The other important takeaway from this case is to consider the alleged similarities as a whole and not to break the two works into components and then look for similarities in text, plot or incidents.  Lord Reid warned in Ladbroke (Football) Ltd v. William Hill (Football) Ltd/, [1964] 1 WLR 273 at 277, a wrong result can be reached by dividing up the original copyright work into separate parts and then asking whether the separate parts standing on their own could be the subject of copyright.  

Although the point did not arise in this case, it is important to remember that there is no copyright in ideas, only in their expression.  It is not an infringement of copyright to adopt an idea expressed in an antecedent work so long as the idea’s formulation is not taken. Were it otherwise there would be no progress in human literature since all ideas come from somewhere. As Mr Justice Peter Smith said in para Baigent and Another v The Random House Group Ltd. : [2006] EWHC 1131 (Ch) “The line to be drawn is to enable a fair balance to be struck between protecting the rights of the author and allowing literary development.”

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