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	England and Wales Patents County Court
You are here: BAILII >> Databases >> England and Wales Patents County Court >> Massey (Child) v Dinamo Productions Ltd [2012] EWPCC 27 (13 June 2012) URL: http://www.bailii.org/ew/cases/EWPCC/2012/27.html Cite as: [2012] EWPCC 27

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IN THE PATENTS COUNTY COURT

		Claim No: CC 12 P 01539 Rolls Buildings, 7 Rolls Buildings, London EC4A 1NL
		13/06/12

Mr Recorder Douglas Campbell:

Introduction

1. This is an action for infringement of copyright. It was commenced in the High Court on 30^th January 2012 and a Defence was served on 27^th February 2012. The action was transferred into this Court pursuant to an Order of Master Bowles dated 27^th March 2012.
2. The Defendant says that on 16^th March 2012 it served a draft application notice on the Claimant applying for an order striking out and/or giving the Defendant summary judgment in respect of the claim. This order was sought on the grounds that "it is without foundation and there is no real prospect of the case succeeding for the reasons outlined in the defence filed with the court by email on 27^th February and delivered to the court with supporting documents on 28^th February 2012".
3. The Claimant has never responded to the Defendant's draft application notice. Indeed the Defendant says that its last direct contact with the Claimant was via an email which the Claimant sent to the Defendant on 16^th February 2012. The Defendant also says that the Claimant contacted the Defendant's broadcaster, S4C, on 18^th and 28^th February stating variously that he had tried to commit suicide, and that "OFCOM are currently in an investigation".
4. The draft application notice was sent by the Defendant to Court or about 16^th March 2012 but there was a mistake in the cheque. The application notice was re-sent to the Court by the Defendant on 23^rd March, but was not actually issued until 19^th April 2012 according to the date stamped on the issued application notice as it appears in the Court file. By that time the claim had been transferred to this Court. The issued form of the application notice is identical to the version which was served in draft.
5. CPR Part 63.25 applies to proceedings in this Court. Part 63.25(1) states that Part 23 applies with the modifications set out in this rule. Part 63.25(2) provides that a respondent to an application must file and serve on all relevant parties a response within 5 days of the service of the application notice. It does not appear from the file that the application notice as issued in this Court on 19 April 2012 was actually served on the Claimant. Instead the draft application notice was served at a time when the action was proceeding in the High Court. Thus this rule does not apply in the present case.
6. Moreover Part 63.25 only modifies Part 23, not Part 24. Hence it seems that the time limits in Part 24, eg in Parts 24.4 and 24.5, are not modified. These time limits assume that a date is fixed for the summary judgment hearing: see 24.4(3) and 24.5(1). In this Court, most applications are dealt with on paper (see 63.25(3)) and no date is given for that determination. In the present case, no date has been "fixed" as envisaged by Part 24.
7. As regards service, I have no reason to doubt the statements made by the Defendant about service and its dealings with the Claimant. However as stated above the only service of anything has been the service of the draft application notice at a time when the action was proceeding in the High Court. Hence although I am satisfied that the Claimant has been aware of this application since 16^th March for the reasons given by the Defendant, I nevertheless propose to treat this as an application made without service of a copy of the application notice: see CPR Parts 23.4(2)(c) and 23.9. The order which I make will, in accordance with Part 23.9(3), contain a statement of the Claimant's right to make an application to set aside or varying the order made under rule 23.10. As stated in Part 23.10(2), any such application to set aside or vary must be made within 7 days after the date upon which the order is served on the person making the application. This approach will therefore provide the Claimant with a window of opportunity in which to make such an application.
8. As regards Part 24, I have considered whether to fix a date for a summary judgment hearing in this matter and to make directions in accordance therewith. However the Defendant's application also seeks a strike out on the basis of the material which was served together with the Defence on 27^th /28^th February, and the Claimant has known of that since 16^th March. There is no reason why the Defendant's application for a strike out cannot be determined on the material presently before the Court. Indeed the Court has power to strike out a case of its own motion under CPR Part 3.4(2). I therefore propose to consider the Defendant's application on that basis.

The parties

9. Before going further, I should say something about the parties.
10. First, the Claimant appears to have been aged 17 years 9 months as at 30 Jan 2012. The Claimant sought permission "under CPR 21.2" to conduct the proceedings himself. It does not appear from the file that any order has been made. However having regard to the lapse of time since January this year, I infer that the Claimant is now over 18 years old in any event. If so, any litigation friend's appointment would have ceased: see Part 21.9(1). In any event I have power to regularise the position under Part 21.3(4). The Defendant did not give any reason why I should decline to do so. Accordingly insofar as it is necessary for me to make any retrospective order permitting the Claimant to conduct these proceedings until he was aged 18, I hereby do so.
11. Secondly, the file indicates that the Claimant obtained full remission of fees both for the issue of the claim form and for the allocation questionnaire. However there appears to be a discrepancy between the figures given on the Claimant's applications and the supporting documentation. In particular the Claimant claimed a total gross annual income of £1 293.44, which is well below the relevant limit of £13 000. However, the Claimant's bank statements for 3^rd December 2011 to 2^nd March 2012 appear to show receipt by him of £6239.93 over this period. Prima facie the claimed figure of £1 293.44 requires further explanation.
12. The Defendant is a company which develops television programmes and sells them to television broadcasters.

The nature of the case

13. The main allegations made in the Particulars of Claim are as follows:

(a) That the Claimant created a synopsis of a children's television programme called "The Wevils" on 19^th July 2010, with a second draft following on 2^nd August 2010 and a pilot script on 17^th September 2010.

(b) That the Claimant sent the first draft to Cbeebies, which I take to be a reference to the BBC children's television department, on July 21^st and 23^rd 2010.

(c) That the Claimant had originally issued proceedings against "their coproduction company", seeking £2 million, and that despite the failure of this party to respond to proceedings the Claimant decided not to apply for summary judgment against them. Although not clear from the Particulars of Claim, it seems that this is a reference to a company called Kavaleer Productions Limited ("Kavaleer").

(d) That there are 5 similarities between the Defendant's program called 'The Wordles" and "the submissions I sent". These are:

i. "Opens in on a nursery (house in theirs)"

ii. "Get the picture book out of the toy box"

iii. "Open the picture book and it comes to life"

"Be transported to a location each episode whilst learning about the location"

The similarities between the name they previously entitled 'Abadas – The Wordles' to 'The Wevils".

(e) The Claimant states "The remedy that I am seeking is £2million in compensation for loss of production of my show along with subsequent distribution and merchandising losses. My second is the ban and cancellation of 'Abadas' from airwaves worldwide."

14. No explanation is given as to how the figure of £2 million has been arrived at.
15. The main points made in the Defence, together with my summary of the supporting documents relied upon, are as follows:

(a) The program in question was originally called "Quelle?" and was created on 3^rd February 2009 by Ms Siwan Jobbins of the Defendant. There is a 2page treatment of the concept which is attached to an email of this date. This shows that the show was intended to be aimed at pre-schoolers and to have 3 characters. The object was to introduce a new word (eg "ball") to the characters and to have one of the characters go looking for it.

(b) By 10^th March 2009 the concept had developed. In a 5-page treatment which is attached to an email of that date from Ms Jobbins, the name had become "The Wordtastics". The concept of introducing viewers to a new word remained, but this time the word (eg "flower") came from a popup book contained in a young boy's bedroom.

(c) On 11^th March 2009, a further email from Ms Jobbins introduces the name "Wordles" for the program. I should mention that "Abadas" is another name for the same program.

(d) On 25^th March 2009, a further email from Ms Jobbins contained further development of the concept. There was to be a title sequence which included live action of a young boy opening a large pop-up book, which then turned into animated fantasy of the three characters.

(e) On 15^th and 18^th June 2009, Ms Jobbins created first and second drafts of a script for an episode of "The Wordles". The word was "flower". The Wordles characters were animated animals called Hugo the Hippo, Todd the Fox, and Pip the bat. The boy was called Alex.

(f) In the script there is much visual comedy, and verbal interplay between Alex and the three characters. The three characters sing songs and learn about flowers. Todd is chosen to find a flower because he has a good sense of smell. He has minor accidents with a slide and trampoline until he finds the flower. There is a final song, and the animation gives way to a live action shot of the book shutting.

(g) The project attracted interest from a number of third parties in 2009. This included an Irish company called TG4 on 15^th May 2009; S4C, the Welsh TV station on 18^th September 2009; and RTE, the Irish broadcaster, on 19^th November 2009. There is also a letter from Parthenon Entertainment expressing an intention to enter into a Distribution Agreement for The Wordles on 25^th November 2009.

(h) The Defendant claims that it had never heard of the Claimant until his correspondence with Kavaleer in December 2011, and that it never received any correspondence from the Claimant until his claim form dated 30^th January 2012.

16. The Defendant also relies on some additional evidence of the Claimant's dealings with Kavaleer, as alluded to in the Particulars of Claim. There are two points in particular which I should mention.
17. The first point is that on 9 February 2011 the Claimant sent an email to Kavaleer attaching a synopsis of "The Wevils". The Claimant has not disputed that this synopsis is his, or that he sent it to Kavaleer on this date. Prima facie this appears a much more likely route by which the Defendant could have obtained access to the Claimant's work than the Cbeebies route mentioned in the Particulars of Claim.
18. The main points of this synopsis are:

(a) This is a children's animation program aimed at the 3-6 age group. There are 6 main characters, all human and all around 4 years old. There is Nina the feisty girl; Jaylin the shy girl; Rain-ying who is said to be "the Braun of the group"; Cooper the 5 year old boy who prefers not to play with the younger children; Fletcher the puzzle solver, who is in a wheelchair throughout the show; and Boo, the "simple minded" boy who is always falling asleep.

(b) Every week they meet in a nursery and find a "Book of Wonders" which transports them to a different location when they all touch a picture in the book. Examples are given of a castle, lake, or zoo.

(c) Each child has an "individual special object (flashlight pen, stretchy diaper, microscope glasses etc)"

(d) When they arrive at the location, they go on an adventure "to fully understand the new words learnt". It is not clear what the "new words" referred to are.

(e) Whilst at the location, each child uses his or her individual special object in order to solve a challenge.

(f) After the adventure, they all return home via the Book of Wonders.

19. The next contact between the Claimant and Kavaleer was a letter from the Claimant headed "Notice of Intended Court Proceedings". The Claimant complains of "extreme violation" of his copyright regarding the material sent on 9^th February 2012 and seeks similar relief from Kavaleer to that sought herein (namely £2 million and the cancellation and ban of the show). In this letter, the Claimant had identified 7 points of similarity:

i. "Opens as the viewers enter a house ('The Wevils' is a nursery)"

ii. "Get the picture book out of the toy box (Exactly)"

iii. "Open the picture book and it comes to life (Exactly)"

"Be transported to a location each episode (Exactly)"

"Learn the word of the location or a work linked to an idea whilst also finding it (Exactly)"

vi. "The only difference is that you've used a mixture of live action and animation with added animal main characters"

vii. Final similarity – when you started pro production with no full finance yet in May 2011 (3 months after my email) you dubbed it 'The Wordles' which is highly similar to 'The Wevils"

20. It seems that the Claimant actually issued proceedings against Kavaleer, and could have obtained judgment in default, but even though his claim was for £2 million he decided that there was little point in seeking relief from them and declined to do so.

The legal approach

21. It is well recognised that there is considerable overlap between the Court's approach to striking out under CPR Part 3.4(2) and summary judgment under CPR Part 24.2: see Independent's Advantage Insurance Co Ltd v Cook [2003] EWCA Civ 1103. As was pointed out in that case at [14]:

"The power of the court to strike out a statement of case under CPR 3.4(2)(a) — and the related power to give summary judgment under CPR 24.2 — has an important place in the disposal of claims in accordance with the Civil Procedural Rules . As Lord Woolf M.R. pointed out in Swain v Hillman and another [2001] 1 All ER 91 , 94 b–c , the exercise of those powers, in an appropriate case, gives effect to the overriding objective set out in CPR Part 1 :

"… It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no useful purpose; and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position …."

22. In that case, the Court of Appeal restricted itself to posing the question under CPR 3.4(2)(a). I shall do likewise. In particular I will not conduct any mini-trial, nor will I strike out the claim unless satisfied that it is "bound to fail".

The Claimant's case

23. The copyright infringement case is not based on word for word copying, but is that aspects of the plot, sub-plots, themes and incidents in the Claimant's work have been copied into that of the Defendant. It is well established that this type of copying is actionable in a proper case: see Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2007] F.S.R. 24; see also Hodgson v Isaac [2010] EWPCC 37, [2012] ECC 4; Mitchell v BBC [2011] EWPCC 42; and Allen v Bloomsbury Publishing [2010] ECDR 16, a decision of Kitchin J (as he then was).
24. The first three of these cases relate to substantive trial. By way of contrast, Allen was an application for summary judgment. Allen makes it clear that that Court should not indulge in a mini-trial on a summary judgment application where allegations of fact are disputed. In that case, the following points were in dispute:

a) Whether the Defendant had had access to the Claimant's work: See [48][79] of Allen. Kitchin J found that the evidence served on behalf of the Defendant was "very powerful", and that the Claimant had no direct evidence with which to challenge it: see [63]. However he also took into account the fact that the author had failed to disclose relevant documents showing how she had created her work (see [64]); and the fact that the Claimant's case was supported by two independent academic experts who gave detailed reasons for their views (see [65] and [73]). One expert was Mr Nicholas Tucker, a former Senior Lecturer in Cultural Studies at the University of Sussex and a specialist in the study of children's literature. He identified plot similarities which he considered to be significant in the context of children's literature. The second expert was Dr Timothy Grant, the Deputy Director and a founding member of the Centre for Forensic Linguistics in the School of Languages and Social Sciences at Aston University. He identified linguistic similarities.

b) Whether the similarities relied upon amounted to a substantial part of the Claimant's work: see [80]-[86]. The issue was whether the Defendant had copied the expression of the Claimant's original collection, selection, arrangement, and structure of literary material or merely (in which case there was infringement) or if the Defendant's work merely replicated or used items of information, facts, ideas, theories, arguments, themes (in which case there was no infringement). Kitchin J "strongly [inclined]" to the view that the Defendant's use, if any, fell on the wrong side of the line as being no more than relatively simple ideas at a high level of generality, but felt unable to say the Claimant's case was so bad as to be fanciful.

25. The upshot was that Kitchin J held that the claim might succeed but it was "improbable" that it would do so: see [90]. In a latter judgment in the same case (see [2011] EWHC 770 (Ch), [2011] FSR 22) he elaborated as follows:

"36 I concluded that it is improbable that the claim will ultimately succeed. In the result, the application for summary judgment failed by the narrowest of margins. This is not a case which is merely somewhat weak and it is, in my judgment, one of those occasions where the prospects of success are so poor that they do justify the exercise of the jurisdiction conferred by r.24.6.

26. It seems to me that there are two fundamental problems with the Claimant's case in this action.
27. First, there is the documentary evidence mentioned above showing that all of the elements complained of were present in the Defendant's program in 2009 before the Claimant claims to have created his synopsis in 2010. This includes the choice of the name, "The Wordles". The key events in the chronology also appear in the Defence, which is supported by a Statement of Truth signed by Mr Hywel Williams of the Defendant.
28. This evidence appears fatal to the Claimant's case, but the Claimant has not even responded to it. So there is, for instance, no suggestion that these documents have been fabricated. Nor is it suggested that there is reason to believe that they are an incomplete account of the development of the Defendant's program. Nor is there any evidence in answer, such as the independent reasoned expert evidence in Allen. Accordingly the Claimant has provided no reason for me to reject this evidence, or any reason to suppose in the Claimant's favour that something might turn up. .
29. Secondly, the Claimant's list of five similarities ignores a number of material differences. This approach gives a distorted impression of the true similarity between the two programs: see the discussion of "similarity by excision" in IPC Media v News Group Newspapers [2005] FSR 35. For instance it will be seen that the Claimant's synopsis revolves around a group of six animated children with well-defined human characteristics, who go from a nursery to a specific location corresponding to the word in the book (eg castle, lake, zoo), and have adventures where they use their "individual special objects". In contrast the Defendant's program has one real child and three talking animated animal characters, none of whom appears to have any of the specified characteristics of the Claimant's six characters; the Defendant's animal characters all live in the book, rather than finding the book; the word in the Defendant's book defines an item rather than a location; the animated characters do not "learn about the location"; there is no use of any "individual special objects"; and the three animal characters stay in the book at the end. There are other differences too, such as the way in which the boy interacts with the three animal characters, and the use of comedy and song, in the Defendant's programme.
30. Moreover the similarities are pitched at a high level of generality. The main overlap seems to be the idea of children using a book to learn about a word, coupled with an illustration of the word in use. This is hardly a novel or original way in which to teach young children words.
31. I do not consider that "The Wordles" is particularly similar to "The Wevils" in any event. The derivation is in any event different. "The Wordles" is a play on "word". The Claimant's explanation of "The Wevils" is that it derives from "little devils", which he says would be pronounced by small children as "wevils".
32. Finally it does not appear to me, and it is not suggested by the Claimant, that the issue of whether the Defendant's work reproduces a substantial part of the Claimant's work is likely to be affected by disclosure or cross-examination in this case. Accordingly the trial judge appears no better placed than I am to assess this issue. Conclusion
33. I have to decide whether to strike out the claim, or allow the matter to go forward to a trial. It seems to me that any trial would be considerably shorter than the full day currently estimated by both sides. Half a day would be ample and it should be possible to accommodate a trial in this Court in the near future. This factor of itself points against striking out: why strike out a case, applying the high threshold, if the case could be determined on the normal balance of probabilities in a relatively short time frame?
34. However I have nevertheless come to the conclusion that the action should be struck out, for the following combination of reasons.

1) First, the Claimant's case suffers from the two fundamental problems identified above. Even bearing in mind the need for caution at this early stage of the litigation, it seems to me that the Claimant's case is bound to fail.

2) Secondly, the Claimant has not put forward any answer to these problems (as the Claimant did in Allen) or given any reason why I should assume that its case will improve. If the Claimant had done so, then I would have been prepared to consider whether the case should go forward to a half day hearing but it does not appear that he has engaged with the Defendant's case at all. Just as appears to have happened in relation to the Claimant's own action against Kavaleer on the same subject matter, he appears to have lost interest in his litigation at a very early stage of the proceedings.

3) Thirdly, the need to be fair to the Claimant has to be balanced with the need to be fair to the Defendant. In circumstances where the Claimant has done nothing to address the major criticisms of his case which have been made by the Defendant, it is not incumbent upon the Court to fight the Claimant's case for him or to require the Defendant to incur the time and expense of preparing for trial.

35. For all these reasons I hereby strike out the action pursuant to CPR Part 3.4(2)(a). As noted above, and as will be stated in the order, the Claimant must make any application to set aside or vary my order within 7 days after the date upon which the order is served on the Claimant.

Post script

36. This judgment was served on draft in the Claimant on or about 6^th June 2012. No response has been received.