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  • Writer's pictureRosie Burbidge

When can copying be inferred?


The BBC has won a summary judgment against a screenplay writer who alleged that two episodes of the TV drama series Silent Witness infringed copyright.


The BBC argued that the screenwriter, Dr Molavi, failed to make any averment as to how her works had been copied. Instead, an inference of copying was drawn from the similarities between the two works.


The judge, Mr Justice Marcus Smith, said the question was “whether the plea of similarity is sufficient to justify a realistically arguable inference that copying must have taken place.” He concluded that it was not.


Lack of similarity

Dr Molavi claimed there were both similarities of overall plot and similarities in scenes or events between her work (various drafts of a synopsis, treatment and screenplays) and the various documents involved in the production of two episodes of Silent Witness, titled ‘Betrayal’, which were broadcast in February 2019.


The judge noted that he should not conduct a mini trial by attaching undue weight to factual evidence that should be assessed at trial. Had Dr Molavi argued a positive case of copying that passed the arguability test, it would not be right to grant summary judgment. Therefore:


The position ought to be the same in the case of an inference: if that inference is sufficient to render the proposition of copying arguable, then I should not be persuaded that it is not arguable simply because of the witness evidence that has been adduced by the BBC on this point.”

The plot similarities claimed included the setting in a forensic pathology unit, a forensic pathologist as protagonist, a dispute over a post-mortem examination report, whether a death was due to heart failure or homicide, the pathologist’s mistakes, issues arising from a long-distance relationship and tampering with human remains.


Marcus Smith J said that stories “derive their drama from certain basic themes, which are surprisingly few in number” and “for an inference of copying to be arguable, the similarities must go beyond these tropes which are common not because of copying, but because we all share the same human condition”.


Stepping back, he found that “the plot contained in [Dr Molavi’s works] is very different to the plot contained in [the BBC works]. Although both involve efforts by protagonists to overcome a force for bad, there the similarities end.” A viewer/reader of both works would regarding them as very different and “would consider an allegation of copying to be far-fetched, if not outlandish”.


The judge also rejected the argument that there were similarities in language and plot, saying: “This is a hopeless allegation on which to found an inference of copying … similarities like this are inevitable.” Whether the incidences of alleged similarity were viewed individually or collectively, he said, the detailed similarities case was not arguable.


Summary judgment was entered for the BBC.


What does this mean?

As emphasised in the recent case involving John Lewis and the dragon, copyright infringement generally requires evidence of copying. Had Dr Molavi presented evidence that the BBC had copied her works, however weak, this dispute would likely have proceeded to a trial.


However, her case was based on the claimed similarities between the works and the inference that there must be copyright infringement. But the judge clearly felt that the similarities were so minor and limited that such a claim was unarguable.


When bringing a copyright infringement case, it is therefore vital to cite examples of alleged copying, based on access to the copyrighted works and specific, detailed similarities (such as identical wording or presentation). If you are concerned about copying of your work, or about allegations of copyright infringement, please contact us for more information.


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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