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Thursday, 15 December 2011

The soccer side and the flip side: copying biographical works

Whether the amount and content copied from one work to another constitutes a substantial part for the purposes of copyright infringement is often one of those chestnuts that copyright lawyers 'know it when they see it'. This point recently came before Judge Birss QC in the (still misnamed) Patents County Court for England and Wales in relation to whether a substantial part of a book was reproduced in a film script: Hodgson and Jarvie v Isaac and Notting Hill Movies Ltd (2011).

Paul Hodgson, who was disabled as a result of childhood meningitis, wrote an autobiography of his life as a fan of Darlington Football Club, his relationship with his family and his experiences in school, employment and community care. Michael Jarvie helped to edit and word process Mr Hodgon's original audiotapes. The resulting work was self-published in 2000 under the title of Flipper's Side. In about 2001, Mr Hodgson and Mr Jarvie worked with Shakabuku Films to produce a script which was based on Flipper's Side but which was by no means an identical story.
Andrew Isaac, who is a screenwriter, became involved with Mr
Hodgson as part of a project to make a film based on Mr Hodgson's life story. To that end, Mr Isaac wrote a script under the title of Down Among the Dead Men (DADM) in 2008-2009 which told the story of 'Paul Hodgson', a wheelchair bound victim of childhood meningitis and a life long fan of Darlington Football Club. Notting Hill Movies Ltd was Mr Isaac's company. Mr Jarvie said that Mr Hodgson suggested amendments, but Mr Isaac refused to take them on board. Mr Hodgson then withdrew any permission Mr Isaac had to make an adaptation of the book. Mr Isaac claimed that he does not need any permission from Mr Hodgson to exploit the DADM script.


Mr Hodgson and Mr Jarvie claimed that the DADM script was an adaptation of Flipper's Side. Mr Isaac denied that assertion on the basis that: (a) the DADM script was result of his own creative input, conversations he had with Mr Hodgson and reading the script prepared by Shakabuku Films; and (b) he had never read Flipper's Side. Instead, he claimed that the DADM script was totally different from the book, the scenes are all fiction whereas Flipper's Side purported to be fact.

Judge Birss conducted an analysis of both Flipper's Side and DADM. He paid particular attention to the Darlington FC chant which was used when playing arch-rivals Hartlepool United and which urged fans to 'shoot the Poolie scum'. He observed (at [61]) that this was 'a striking and dramatic beginning which set the scene neatly for the rest of the book'. It achieved the same purpose in the DADM script and for Judge Birss (at [61]), the only credible explanation for this was that Mr Isaac obtained the chant and the idea of using it in this way from '.He concluded (at [69]) that:
'When the book and the DADM script are each considered as a whole, the DADM script is in fact very closely related to the book in terms of its plot, characters and the striking incidents and events which take place. The text is almost entirely different but nine episodes in the DADM script revolve around striking events present in Flipper’s Side ... and five more include notable events from Flipper’s Side as important parts of the episode ... In as much as it is possible or meaningful to quantify such things, in my judgment roughly half of the dramatic incidents in the DADM script derive from Flipper’s Side.'
On the issue of substantial part, Judge Birss found (at [77]) that, having read both tests, 'the elements of Flipper’s Side which are reproduced in the DADM script are the main characters, many of the settings and contexts in which the events take place and a good number of the incidents themselves'. Such elements, he stated (at [81]) were 'not merely a generic story about a disabled football fan but are recognisable as part of the particular story told in Flipper’s Side. The details and incidents which are reproduced and their interpretation are a key part of what makes Flipper’s Side itself an original work'. Therefore, he concluded at (at [82]) that 'all these elements together do amount to a substantial part of Flipper’s Side. Their presence in Flipper’s Side is the result of the intellectual effort of the author in having them set down and told his story'.

For a comment or two on the football chant in question, see "Que Sera Sera, We'll Sue in the Pee-Cee-Cee" on the 1709 Blog here.

1 comment:

Richard McD Bridge said...

It is regrettable that the defendant was not properly represented.

It is curious and regrettable that the claimant's barrister appears not to have drawn the attention of the court to authorities of assistance to the unrepresented defendant.

As the late Hugh Laddie (he was not then Sir Hugh Laddie) argued (and the court to some extent accepted) in the Spear (Ravenscroft v Herbert) it is proper to treat fact differently from fiction. Events that are (or are alleged to be) fact should to some extent be protected from being monopolised by being revealed or set out in a literary or dramatic work.

This seems wholly to have been ignored.

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