Seeking an interim injunction to protect against copyright infringement can often run into difficulties, as demonstrated by the recent judgment in Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch).

The dispute centred on the script for an episode of ‘Pitching in’, a comedy-drama programme by the BBC about a widower in a Welsh caravan camp (the Episode). The Claimant sought an interim injunction to prevent the BBC from broadcasting the Episode, claiming copyright infringement in a script, written by one of its directors, which was also a comedy about life and death in a Welsh caravan site (the Script).

Another of the Claimant’s directors had, some years previously, met a BBC producer, and said they shared the Script with her. The Claimant argued that the Defendant then copied the idea and features of the expression of that idea in the Script by producing the Episode.

Establishing copyright – and infringement

Although there was a lack of evidence as to its creation, the Judge inferred that the Script was an ‘original literary work’ within the meaning of s.1(1)(a) of the Copyright, Designs and Patents Act 1988 (the Act).

There was also a lack of certainty that the copyright actually rested with the Claimant, as there was no evidence of an assignment from the first author of the copyright. The Judge considered this but decided that the application would not fall on this basis, given that the company was specifically set up to exploit the copyright in the Script.

The Judge examined the chronology of events to understand whether there was a sufficient link between the works, necessary to establish that the Defendant had copied a substantial part of the Script (for the purposes of s.16(3) of the Act), but found it difficult to establish any copying. This was because, whilst there were some similarities between the scripts at a very broad level, the court held that the imaginative idea underlying the Claimant’s programme was “very different”.

Despite this, the test in American Cyanamid Co v Ethicon Ltd [1975] 2 WLR 316 was applied in order to determine whether an interim injunction should be granted. The Judge considered that the purpose of the test is to make the “least bad mistake” i.e. “is it worse to grant an interim injunction if ultimately it was found that there was no basis for such an injunction; or to have refused an injunction if ultimately it was found that there was an entitlement for the injunction”?

Firstly, the Judge found that there was no serious case to be tried, stating “the lack of particularity with which the supposed copying is identified presents the claimant with a huge problem”. This naturally ruled out the granting of an interim injunction, but nevertheless the court went on to consider the next stage in the test – whether damages would be an adequate remedy for the Claimant, finding that they would.

The Judge was further dissuaded from granting an injunction by the timing of the claim. The Claimant brought the application “dreadfully late“, having known about the alleged infringement for several month, and without any “strong justification“. Unsurprisingly, the claim failed.

How can scriptwriters protect themselves against copyright infringement?

Scriptwriters will inevitably have to share their work and provide a script to TV or film companies in order to commercially exploit it. However, it is important that authors are mindful of when and how the work is shared in order to reduce the risk of copyright infringement taking place.

Simple steps like ensuring records are kept of what is disclosed, to whom and when, and sharing information by email wherever possible can help establish a clear link between the parties, (which the case shows is necessary to establish copying).

Confidentiality agreements may also be used to good effect to prevent the discussing or sharing the work with any other party without the author’s consent, although such contracts need to be agreed and put in place before information is shared – which can slow down what are often fluid discussions in the early stages of film and television commissioning.

However, should an interim application for infringement become necessary, a claim could then rest on breach of confidence as well as copyright infringement. Although by no means conclusive, such agreements may go some way in persuading the judge an interim injunction is an appropriate remedy.

Also, remember not to leave interim injunction applications to the last minute! Depending on the circumstances, even a delay of a few months or even weeks can be fatal to a successful application for interim relief.