Copyright - Rinkoff v Baby Cow Productions Ltd.

Crying mask Melpomene and laughing mask Thalia

Author Tim Green Licence CC BY-SA 2.0 Source Wikimedia Commons

 

Jane Lambert

Intellectual Property Enterprise Court (Recorder Amanda Michaels) Rinkoff v Baby Cow Productions Ltd [2025] EWHC 39 (IPEC) (17 Jan 2025)

This was a claim for copyright infringement. The work in which copyright was alleged to subsist as an original dramatic work was the format of two series of comedy shows called "Shambles". The individual who devised that format was the writer and comedian Joshua Rinkoff ("Mr Rinkoff") who performs under the name Harry Deansway.  Mr Rinkoff alleged that Baby Cow Productions Ltd. ("Baby Cow") had copied his format to make a series called "Live at the Moth Club".  The action came on for trial before Recorder Amanda Michaels on 4 and 5 Nov 2024.  By her judgment of 17 Jan 2025, the recorder dismissed Mr Rinkoff's claim (see Rinkoff v Baby Cow Productions Ltd [2025] EWHC 39 (IPEC) (17 Jan 2025)).  In para [2] of her judgment, she said that copyright did not subsist in the format of these shows but, even if it did, Baby Cow had not copied Mr Rinkoff's formats.

The Alleged Copyright Work

Para 8 of Mr Rinkoff's Amended Particulars of Claim alleged as follows:

"8 … the format of Shambles consists 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. In support of the foregoing, the Claimant relies on the unique combination of each of the following features, giving rise to a series with an idiosyncratic tone and/or distinctive plots not seen in other sitcoms:
8.1. A setting in a comedy club struggling to make ends meet based in a real-world venue which is not a full-time purpose built comedy club;
8.2. 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, on the other, giving rise to a unique hybrid of sitcom and comedy entertainment;
8.3. The staging of interactions between the fictional characters of the sitcom scenes and inter alia the stand-up comedians of the live performance scenes to create a unique blend of the fictional and the documentary, including interactions between the fictional characters and the stand-up comedians, and/or interactions between the fictional characters and real audience members, …;
8.4 The use of techniques of cinema verité techniques including handheld camera footage, the use of natural lighting, the use of dialogue that appears to be unscripted and improvised, the staging of scenes in a fly-on-the-wall manner in which action unfolds in front of the camera in a manner that appears un-staged and natural, and the use of what appears to be a real-life audience at a real comedy venue to imbue all the scenes with a sense of realism and authenticity but also to add to the general dry and deadpan humour of the series;
8.5. A promoter character, Harry, who is the protagonist of the show and faces significant challenges in putting on a successful comedy night, …;
8.6 A hapless club owner character, Greg, who owns and runs the dilapidated venue and who tries to help the protagonist but usually makes things worse, …;
8.7. An intern character and junior member of the team running the comedy club (named Joe in the First Season and Toby in the Second Season), who likewise acts with good intentions but often just makes things worse for the protagonist, …;
8.8 The constant presence of a variety of industry characters working behind the scenes in the comedy industry, including such as agents, producers and talent scouts, who come up with bad or surreal ideas for the comedy night that never work, ..."

Para 9 alleged that the work was recorded not just in video recordings but also in several documents written by Mr Rinkoff, such as notes of key features of Series 1, plot points for Series 1, outline scripts for Series 2 and a Shambles 'Philosophy' written in around November 2014.

Alleged Infringement

Mr Rinkoff identified features of Live at the Moth Club that he alleged gave rise "to a sitcom with a markedly similar tone and feeling to the original Shambles." He alleged that there were striking similarities between the shows that could not be explained by coincidence but led inexorably to a finding of copying.

Defence

Baby Cow denied both the subsistence of copyright in such format and copying of the same.

Issues

After a case management conference, the court directed the following issues to be tried:

"(a) whether a format may be protected as an original dramatic work;
(b) whether the format of Shambles (as defined in the Amended Particulars of Claim) is protected as a dramatic work;
(c) whether the Claimant is the author of the format of Shambles;
(d) is the Claimant the owner of any copyright that may subsist in the format of Series 2 of Shambles;
(e) whether the pleaded features of Live at the Moth Club had been copied from Shambles;
(f) if any of those features have been copied – did that amount to a substantial part of any protected work."

Subsistence of Copyright

Between paras [37] and [76] Recorder Michaels addressed the question: "Is there copyright in the format of Shambles?"  By so doing she seems to have taken issue (a) "whether a format may be protected as an original dramatic work" and issue (b) "whether the format of Shambles (as defined in the Amended Particulars of Claim) is protected as a dramatic work" together. She approached that task by considering:

• whether Mr Rinkoff claimed that the format was protected as an original dramatic work or whether it could be protected by some other kind of copyright;
• what was meant by the term "dramatic work";
• where does the boundary lie between ideas and expression;
• what is meant by fixation;
• what is a copyright work;
• what is the test for the subsistence of copyright;
• what is the appropriate scope of a "dramatic work";
• whether copyright has ever been held to subsist in the format of a show; and
• whether copyright subsisted in this format.

Type of Copyright Protection

Miss Michaels answered this question peremptorily in para [37] of her judgment.   As the Amended Particulars of Claim claimed that the format of Shambles was protected as a dramatic work, the statement of case could not in her judgment be read as suggesting that the format was protected as any other kind of copyright whether or not of a kind expressly identified in the Copyright, Designs and Patents Act 1988 ("the CDPA").  She reflected that that meant that she did not have to address tensions between the UK and EU approach to "works." that Lord Justice Arnold considered in paras [53] to [60] of his judgment in Wright and others v BTC Core and others [2023] EWCA Civ 868; [2023] FSR 21.  Nevertheless, she encountered those issues when discussing the judgments of the Court of Justice of the European Union ("CJEU") in C-310/17 Levola Hengelo BV v Smilde Foods BV (C-310/17) EU: C:2018:899, [2018] Bus LR 2442 and Case C-683/17 Cofemel - Sociedade de Vestuario SA v G-Star Raw CV EU: C:2019:721, [2020] ECDR later in her judgment.

"Dramatic Work"

The learned recorder referred to s.1 (1) (a) and s.3 (1) of that Act and para 2-113 of Copinger and Skone James on Copyright, 19th ed. (Dec 2024):

"The 1988 Act continues the general approach of the earlier Acts in that, unlike the cases of literary and musical works, it does not attempt a comprehensive definition of a dramatic work, merely stating that it includes a work of dance or mime. It also includes plays, screenplay and scripts for TV shows (at least when intended to be performed live and recorded before an audience). Although it is expressly provided that a literary work cannot be a dramatic work, there is no express exclusion, unlike in the case of the 1956 Act, of the possibility of a film being a dramatic work. ... As to what comes within the general description of 'dramatic work', the expression is at large and should therefore be given its natural and ordinary meaning, which is that it is a work of action, with or without words or music, which is capable of being performed before an audience. This definition brings out the point that a distinguishing characteristic of a dramatic work is that it must be capable of being performed …"

Ideas and Expression

As it was common ground that copyright protects the embodiment of an idea, not the idea itself, Recorder Michaels referred to paras [94] to [98] of the judgment of Mr Justice Edwin Johnson in Pasternak v Prescott [2022] EWHC 2695 (Ch); [2023] FSR 9:

"[94] Turning to the principles which govern copyright protection, these derive partly from English case law, but also from international treaties which have shaped the UK copyright regime, as well as EU law through Directive 2001/29/EC ("the InfoSoc Directive"). This part of EU law remains a retained part of UK law. 

[95] In terms of what is protected by copyright, the first principle to draw out is the general principle that copyright arises only in the expression of a work, and does not arise in ideas themselves.
[96] This distinction was explained by Lord Hoffmann in his speech in the House of Lords in Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 WLR 2416, at 2423A-D.

'My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 is a well-known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection.'

[97]  It will be noted that Lord Hoffmann identified two propositions in this extract from his speech. So far as the first proposition is concerned, ideas of a non-literary kind, such as matters of historical fact or technical information cannot be subject to copyright protection. As Mummery LJ explained in Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2008] E.M.L.R. 7; [2007] F.S.R. 24, at [146]:

'It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work.'

[98] Turning to the second proposition, ideas of an artistic or literary nature are not necessarily subject to copyright protection. This principle was usefully explained by Laddie J, in IPC Media Ltd v Highbury Leisure Publishing Ltd (No.2) [2004] EWHC 2985 (Ch); [2005] FSR 20, at [14]:

'The need to prove copying involves showing a design nexus between the defendant's and the claimant's works. However it is a mistake to believe that any nexus will do. The law of copyright has never gone as far as to protect general themes, styles or ideas. Monet, like those before him, acquired no right to prevent others from painting flowers or even water lilies or, to take an example referred to by Mr Howe, Georges Seurat would not have obtained, through copyright, the right to prevent others from painting in a pointillist style. Even someone who is inspired by Monet to paint water lilies or by Seurat to paint using coloured dots would not infringe copyright. Such general concepts are not put out of bounds to others by the law of copyright. Needless to say, it is impossible to define the boundary between mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other. Judge Learned Hand in Nichols v Universal Pictures Co 45 F 2nd 119 (2nd Cir. 1930) said that wherever the line is drawn will seem arbitrary. He also said:

'Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his 'ideas', to which, apart from their expression, his property is never extended' (p.121).'"

Miss Michaels also referred to para [34] of  Lord Justice Floyd's judgment in Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3:

"Copyright, of course, does not subsist in mere ideas, but in their expression. That proposition is a well-established one in English law, and is now also to be found in a number of international treaties and EU Directives: see art.9 (2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs") and art.2 of the WIPO Copyright Treaty. The ideas/expression dichotomy has, however, been described as 'notoriously slippery' … A mere idea, stripped of any context, is of course not the subject of copyright. Jacob J put it in this way in IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] F.S.R. 275 at p.291:

'The true position is that where an 'idea' is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the 'idea' is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the 'idea') of a novel or play can certainly infringe– if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between 'idea' and 'expression'): 'Nobody has been able to fix that boundary and nobody ever can'."

Fixation

Miss Michaels reminded herself that copyright does not subsist in a work unless and until it takes some material form referring to para 2-166 of Copinger and Skone James:

"The reasons for this principle are practical. Since copyright is a form of monopoly in relation to the subject matter which is protected, there must be certainty as to what that subject matter is. This is necessary so as to be able both to prove the existence of the work and to establish what the work consists of, so that it can be judged whether the work has been copied or otherwise infringed. Fixation also provides a limit to the monopoly, ensuring that the protection accorded to the work does not extend beyond the expression of the work to the ideas or information contained or represented in it. This is necessary in holding a balance between the author's interests and society's interests."

Nature of a Copyright Work;

The recorder noted that the CJEU had considered what was meant by a "work" in paras [27] to [29] of its judgment in Cofemel - Sociedade de Vestuario SA v G-Star Raw CV:

"[27]  Under Article 2 (a) of Directive 2001/29, Member States are required to provide that authors have the exclusive right to authorise or prohibit reproduction of their works.
[28] The term 'work' referred to by that provision is also to be found in Article 3 (1) and Article 4 (1) of Directive 2001/29, on the exclusive rights granted to the author of a work with respect to its communication to the public and its distribution, and in Articles 5, 6 and 7 of that directive, the first of those provisions concerning the exceptions or limitations that may be applied to those exclusive rights, and the latter two provisions concerning the technological measures and information measures that ensure the protection of those exclusive rights.
[29] The concept of 'work' that is the subject of all those provisions constitutes, as is clear from the Court's settled case law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation (see, to that effect, judgments of 16 July 2009, Infopaq International, C-5/08, EU: C:2009:465, paragraphs 37 and 39, and of 13 November 2018, Levola Hengelo, C-310/17, EU: C:2018:899, paragraphs 33 and 35 to 37 and the case-law cited)." (emphasis added)

In Levola Hengelo BV v Smilde Foods BV, copyright was claimed in the taste of a spreadable dip containing cream cheese and fresh herbs, The CJEU said that two conditions must be satisfied for the subject matter to be classified as a "work". First, the subject matter concerned must be original in the sense that it is the author's own intellectual creation and secondly the "protected subject matter" had to be capable of being expressed in a precise and objective manner.

Test for the Subsistence of Copyright

Recorder Michaels noted at para [47] of her judgment that the parties had agreed that the test for the subsistence of copyright was that:

"a. 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
b. it must be the expression of the author's intellectual creation, which requires it to be identifiable with sufficient precision and objectivity."

Appropriate Scope of a "Dramatic Work"

Both parties referred to Lord Justice Nourse's dicta in Norowzian v Arks Limited (No. 2)  [2000] FSR 363, [1999] EWCA Civ 3018, [2000] ECDR 205, [2000] EMLR 67:

"In my judgment a film can be a dramatic work for the purposes of the Act. The definition of that expression being at large, it must be given its natural and ordinary meaning. We were referred to several dictionary and textbook definitions. My own, substantially a distilled synthesis of those which have gone before, would be this: a dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience."

The recorder noted that Lord Justice Floyd thought that a screenplay was more akin to a dramatic work than a novel in Kogan v Martin:

"[41]. … It is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the case of a literary or dramatic work, whether the work is one of sole or joint authorship. …
[42] … What counts as an authorial contribution may vary depending on the type of work, however. A screenplay is concerned with providing a plot and dialogue which enable the reader to visualise what is going to happen on the screen, and get a feeling for what the audience will experience. The author is directly concerned with such matters as the choice of characters and the incidents in the film which will bring out those characters, and display their emotions. The storyline and plot are also of direct concern to the author and are a part of what he or she creates. These aspects of a screenplay can, in principle, amount to a contribution of an authorial kind.

............................
[66]. … the judge describes a screenplay as a literary work, like a novel, and describes the primary skill as the selection and arrangement of words in the course of setting them down. This passage fails to make what in our view is an important distinction between a novel and a screenplay. We think a screenplay is more accurately described as a dramatic work, as its primary purpose lies in being performed, as opposed to being read, like a novel."

Commenting on para [42] of Lord Justice Floyd's judgment, the recorder said that it was clear that dramatic copyright protects the skill and effort used to create or select or, in this case perhaps, combine, the underlying concepts of the work but the concepts are not protected as such. That reflects the general principle that copyright protects only the expression of a work and does not subsist in ideas themselves. She added that Lord Justice Floyd set out what is now para 6-98 of Copinger in the above para [66]:

"In the case of dramatic works which are written or otherwise recorded in words, if the language itself has been copied, no special considerations apply. However, a basic distinction between literary works and dramatic works is that the choice of dramatic incident and the arrangement of situation and plot may constitute, to a much greater extent, the real value of a dramatic work. ... It should be remembered that dramatic works include not only plays, screenplays and scripts for TV shows (at least when intended to be performed live and recorded before an audience) … and that they may also take the form of a (cinematograph) film or audiovisual work."

Whether Copyright can subsist in the Format of a Show

The recorder noted in para [58] that the claimant could not identify a UK case in which a claim that a format was protected as a dramatic work had succeeded. The nearest it came was the dissenting judgment of Mr Justice Gallen in Green v  Broadcasting Corporation of New Zealand CA40/84 [1988] NZCA 180; [1988] 2 NZLR 490; (1988) 2 TCLR 701 (22 Sept 1988), Mr Justice Snowden's dicta in Banner Universal Motion Pictures v Endemol Shine Group [2017] EWHC 2600 (Ch), [2018] ECDR 2 and Mr Justice MacCallum finding in Hutton v. Canadian Broadcasting Corp. (1989), 102 A.R. 6, 29 C.P.R. (3d) 398, 27 C.I.P.R. 12 (Q.B.) CanLII 3311 (AB KB).

In the New Zealand Court of Appeal, Mr Justice Gallen said that he would have found that copyright subsisted in various catchphrases and the use of a clapometer in the British TV talent contest, Opportunity Knocks:

"If the combination of material upon which the person seeking protection relies has a recognisable framework or structure and that framework is such as to impose a shape upon the other constituent parts of the show produced within it, then I should not have thought it contrary to principle to regards it as an original literary or dramatic work for the purposes of the [New Zealand Copyright Act 1962]."

However, the Privy Council disagreed with him in Green v Broadcasting Corporation of New Zealand [1989] RPC 700 1989] UKPC 26:

"It is stretching the original use of the word "format" a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were "structure" or "package". This difficulty in finding an appropriate term to describe the nature of the "work" in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the questions and answers in the quiz show etc.) and identified as an "original dramatic work". No case was cited to their Lordships in which copyright of the kind claimed had been established.

The protection which copyright gives creates a monopoly and 'there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world': Tate v. Fulbrook [1908] 1 KB 821, per Farwell J. at page 832. The subject matter of the copyright claimed for the 'dramatic format' of 'Opportunity Knocks' is conspicuously lacking in certainty. Moreover, it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the 'format' of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic."

In Banner Mr Justice Snowden said:

"[43] I think that the authorities and commentary to which I have referred above indicate that it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode.
[44] I do not need to decide on this interim application the precise conditions that must be satisfied before a television format can be protected as a dramatic work. What I think is apparent from the authorities, however, is that copyright protection will not subsist unless, as a minimum: (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are 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.
[45] In Green, the majority of the New Zealand Court of Appeal and the Privy Council were not satisfied that those criteria were met on the facts … I think that the Privy Council simply thought that, even considered together, the features were not organised in such a way as to constitute a unified work that could be performed, which is the essence of a dramatic work. Moreover, although Gallen J took a different view of the particular facts of the case, I do not think that he necessarily took a very different view of the legal principles: he spoke of the need for the combination of features to amount to "a recognisable framework which imposed a shape upon the other constituent parts of the show."
[46] In my judgment, tested against any of those requirements, there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows."

The  features on which Banner Universal Motion Pictures ("BUMP") relied were "the use of the title Minute Winner, the phrase 'one minute to win (something)', examples of minute-long tasks using ordinary household items capable of being performed and completed in a minute by individuals on camera; set either in a studio or on location; in either case capturing a contestant's actions and reactions during the attempt of the minute long task; to be broadcast either singly as fillers between feature-length shows or in succession to form a feature length show in its own right; and the use of prizes sponsored by firms in exchange for advertising during the programme."

Mr Juatice MacCallum found in Hutton that copyright subsisted in a sequence of a music show in which it appeared that information about the charts was being compiled there and then because the Canadian Copyright Act 1985 included an arrangement or "acting form" in its definition of dramatic work.  However, his lordship did not find that that sequence had been copied.  

Recorder Michaels referred to para 2-123 of Copinger which had analysed the judgments in Green and Banner:

"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."

She also referred to the equivalent passage in the previous edition of Copinger which suggested:

"A useful test to determine whether there is a protectable dramatic work is to ask whether, using the written script or other record as a basis, it is possibly (sic) to present a coherent and meaningful show which is capable of being performed."

Finally, Miss Michaels referred to para 2-124 of Copinger which discussed the position where part of a show is improvised:

"A copyright dramatic work confers on the owner the exclusive rights to do various acts in relation to the work as a whole or a substantial part of it; a qualifying performance confers on the owner of the performers' right various rights in relation to the performance. The unauthorised copying of a performance of a dramatic work may thus separately infringe the rights of the owners of the copyright and the performers' right. Again, a person may give a performance which is an ad lib performance. This may either be as part of a work, as where the author has left the performer to improvise without direction from the author, or it may constitute the entire performance. In the former case, the improvisation may be part of the dramatic structure of the work, but what the actor actually does while improvising cannot, it is suggested, be part of the original dramatic work."

Whether Copyright subsisted in the Format for Shambles

At para [75] Recorder Michaels found that the format of Shambles was not a work that was capable of being protected by copyright as a dramatic work.

The claimant had submitted that the hallmarks of a format protectable as a dramatic work were (a) characters with a clear identity who appear repeatedly in each episode, (b) a consistent setting, (c) plots or storylines sufficiently described that each episode be understood and capable of performance and with a consistent narrative framework, episode to Mepisode, and (d) consistency of filmic techniques and editorial style.  The recorder rejected that submission because she did not consider that these four features would necessarily create a uniform work that could be performed, they had not all been pleaded and other was no consistent plot in the series.

If the format of the series was a single work it was not clear when it was created.  Not all the pleaded features were present in all the episodes.   There was no fixed form of expression across the series.  The features were not connected with each other in a coherent framework. They did not set out a formula that could be repeatedly applied to enable the show to be reproduced in a recognizable form. The pleaded features set out general ideas at a fairly high level of abstraction and were inadequate to enable anyone to create, perform or reproduce an episode of Shambles. The characters were not sketched out in any detail. There were no plots or consistent storylines.

Whether the Claimant was the Author of the Format of Shambles

Although she thought it was possible that other people had some input into the details of characterization or details or plots which were not part of the format as identified in the pleaded case, the recorder was satisfied that Mr Rinkoff was the sole author of the alleged format.

Whether the Claimant is the Owner of any Copyright that may subsist in the Format of Series 2 of Shambles

This point arose because Mr Rinkoff entered a finance and production agreement with Wildseed Productions Ltd. to make a series of shows for YouTube.  The recorder found that the agreement obliged Mr Rinkoff to assign copyright in new content to Wildseed Productions.  She did not think that she had to make a ruling on the issue in view of her earlier findings but if she was wrong on the subsistence of copyright then the question of joint ownership would have to be determined.

Infringement

Miss Michaels took the issues of whether the pleaded features of Live at the Moth Club had been copied from Shambles and if any of those features had been copied whether they amounted to a substantial part of any protected work together.  

It was common ground that copyright in a dramatic work can be infringed:

• by copying 
• copying means "reproducing the work in any material form" and 
• the copying must be of the whole or a substantial part of the work, in qualitative rather than quantitative terms. 

Both parties referred the recorder to the following paragraphs of the judgment of Mr Justice Zacaroli in Sheeran and others v Chokri and others [2022] EWHC 827 (Ch), [2022] FSR 15:

"[21] To amount to an infringement, however, the copying must be of either the original work or a "substantial part" of it: s.16 (3) (a) of CDPA. This is a qualitative, not quantitative, question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work: Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890,
at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16; [2010] FSR 20. The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant's copyright work (or a substantial part of it): Mitchell v BBC [2011] EWPCC 42, per HHJ Birss QC at [28]-[29].

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[24] While the legal burden rests with the person alleging infringement, in the case
of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. There was some debate as to whether what was required was proof of access, or proof of the possibility of access.
[25] The weight of authority supports the former: see, for example, Designers Guild
(above), per Lord Millett at p.2425E; Baigent v Random House [2007] EWCA Civ
247; [2007] F.S.R. 24 at [4], although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer's access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. …
[26] Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.
[27] The leading case on subconscious copying is Francis Day & Hunter v Bron (above), in which the Court of Appeal established that, although it was possible to demonstrate that a person had infringed copyright without intending to do so, it was nevertheless necessary to establish "proof of familiarity" with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work …
[28] Whether there has been subconscious copying is a question of fact to be determined on the basis of all the evidence (and does not rest on the shifting of an
evidential burden: see Mitchell v BBC (above) at [39]). There will rarely, if ever, be direct evidence of subconscious copying, so it is necessary – as with any issue where direct evidence is lacking – to reach a conclusion based on inferences from other evidence. The following direction which the trial judge, Wilberforce J, had given himself was approved by the Court of Appeal in Francis Day (at pp.614-615):

'The final question to be resolved is whether the plaintiffs' work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs' work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants' work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer's own evidence on the presence or otherwise in his mind of the plaintiffs' work.'"

Mr Rinkoff argued that similarities in characterization and storylines raised an inference of copying. The recorder disagreed.   In her view, any similarity was at a high degree of generality.  She observed that the live comedy elements of Live at the Moth Club were far more significant than in Shambles and that its overall premise was much less evidently a sitcom and much more a faux documentary than Shambles.  The alleged similarities in characterization were attributable to the use of stock characters.  In short, the similarities between the two shows were not enough to raise a presumption of copying.

Comment

 Claiming copyright in the format of a show with considerable improvisation was never going to be easy however the case was presented.  In view of the outcome in Green, Banner and Hutton claiming copyright in the format of the series as a dramatic work in itself was a particularly long shot.  

Possibly because copyright does not have to be registered in this country it has never been necessary to dissect a work to find copyrightable matter as it is in the United States.  In Warwick Film Producers Ltd v Eisinger [1969] Ch 509, [1967] 3 All ER 367 a claim for copyright infringement failed even though the defendant had reproduced the transcript of Wild's trial which formed a large part of the claimant's book in his screenplay for a film about Oscar Wild.  As the claimant did not own the copyright in the transcripts they did not constitute a substantial part of the claimant's work.  Copyright is likely to have subsisted in each of the episodes of Shambles.   It might have been possible to argue that a character or storyline in an episode of Live at the Moth Club which was similar to a character or storyline in an episode of Shambles infringed the copyright subsisting in that episode.   

Sometimes it is possible to rely on the law of passing off where a film reproduces the title and other features of a theatrical review as in Samuelson v Producers' Distributing Co, Ltd. [1932] 1 Ch 201; 101 LJ Ch 168; 146 LT 37; 48 RPC 580.

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