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  • Writer's pictureRosie Burbidge

No copyright infringement in Flying Fergus books


Yello background with copied line drawings of toy soldiers at random angles

His Honour Judge Cadwallader has granted summary judgment in a copyright claim filed by author and illustrator Joyce Carole Becker-Douglas. She claimed that a series of books known as the Flying Fergus series infringed her copyright in a number of unpublished works featuring a character called Jimmy Whizz.


However, the judge found that there was no basis for inferring either access or copying and no reason to suppose that the evidence in relation to either would improve at trial.


No similarity or access means no copyright infringement

HHJ Cadwallader noted that Becker-Douglas had to prove at least similarity between the alleged infringing work and the original copyright work, coupled with proof of direct or indirect access to the original.


But there was no evidence of access to the original work, against “cogent and compelling evidence” of independent creation.


The case was based on conscious, rather than unconscious, copying but the judge said:


“The ideas upon which the Claimant relies are commonplace and unoriginal. The textual similarities to which she points are derived by extracting from the large volume of the Flying Fergus works, the general, typical, and commonplace, particularly in a children’s book. There are no artistic similarities between the illustrations. So far from there being similarities capable of founding an inference both of access and of copying, there are numerous and striking differences between the works.”

Becker-Douglas claimed that her extensive unpublished Jimmy Whizz material was given to the defendants by individuals who had received unsolicited copies of her work. But the judge said her case on access was “purely speculative” and “highly implausible”. The main features of the Flying Fergus series were developed before these communications.


The judge also rejected the argument that the similarities between the works were such as to be capable of founding an inference of access and copying. He said:


“Flying bicycles, parallel worlds, idealised medieval settings, bighearted young protagonists from a deprived background, and endearingly eccentric and technically-minded adults are not news in the world of children’s entertainment, and there is nothing about the particular features of these works to suggest that one was derived from the other.”

Claimed textual similarities were “no more than commonplace”, the illustrations were “utterly unalike in both style and content”, the plots were different and numerous characters were very different or did not appear at all in one or the other series.

 

What does this mean?

The judge clearly felt that the copyright claim in this case was thin and unsubstantiated, and it fell at the first hurdle.


This is a challenge many claimants face, particularly in a field such as children’s literature where certain themes are very common. Identifying vague similarities between works is no basis for a claim of copyright infringement; there need to be specific and demonstrable examples of copying – or at least the possibility of copying – for a case even to go to trial.


As the judge put it:

“[A trial] would involve the parties in very substantial expenditure of time and money, and will occupy substantial court resources, to no desirable end.”

If you are concerned about copyright infringement, it is vital to prepare your case carefully and compile all the relevant evidence before bringing an action. For more details on how to do this, please speak to Rosie Burbidge.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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