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Monday, 25 June 2012

See no Wevils, speak no Wordles: child plaintiff loses out

Not this sort of Wordle ...
As we all know, the distribution and merchandising of children's TV means big business. And, as with any big business, there is often the risk that people will claim that they had created the now-popular characters and seek a remedy for copyright infringement (see, for example, this Katpost on last year's proceedings in respect of the BBC's Kerwhizz).

Earlier this month another case concerning a children's TV show came to light -- this time before the Patents County Court for England and Wales (PCC): Massey (Child) v Dinamo Productions Ltd [2012] EWPCC 27 (13 June 2012). What happened here? Reshaun Massey commenced proceedings against Dinamo Productions Ltd on the basis that Dinamo's children's programme 'The Wordles' [nb 'The Wordles' appear to be part of a programme called 'The Abadas'] contained several similarities with a programme which Massey had written called 'The Wevils' and which he had submitted to the BBC Children's TV Department (CBeebies) and to another producer, Kavaleer Productions Limited, in around July and September 2010. Massey claimed that there were five similarities in the plots, themes and incidents which had been copied from between 'The Wevils' into 'The Wordles':
  • 'Opens in on a nursery (house in theirs)'
  • 'Get the picture book out of the toy box'
  • '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'.
Massey sought £2 million in compensation for 'loss of production of my show along with subsequent distribution and merchandising losses' and a 'ban and cancellation of 'Abadas' from airwaves worldwide'. Dinamo sought to strike out Massey's claim.  The written application came before Recorder Douglas Campbell in the PCC. Recorder Campbell considered that Massey's claim was 'bound to fail' and granted the application for a number of reasons.

First, there was documentary evidence from Dinamo to the effect that all of the elements complained of were present in 'The Wordles' in 2009 before Massey claims to have created his synopsis in 2010 [says the IPKat, this demonstrates the virtue of never throwing away any creative material until after the successful conclusion of the legal action you didn't know you were going to face].

... and not this sort of Weevil
Secondly, Massey's list of five similarities ignored a number of material differences [rightly so, says Merpel: copyright infringement actions are founded on what has been taken, not what hasn't] and gave a distorted impression of the true similarity between the two programmes. In particular, Recorder Campbell made reference to the fact that Massey's synopsis revolved around a group of six animated children with well-defined human characteristics [don't all children have well-defined human characteristics. Well, most of them ...?], who go from a nursery to a specific location corresponding to the word in the book (eg castle, lake, zoo), and had adventures where they used their 'individual special objects'. In contrast, Dinamo's programme featured one real child and three talking animated animal characters, none of whom appeared to have any of the specified characteristics of Massey's six characters; Dinamo's animal characters all lived in the book, rather than finding the book; the word in the Dinamo's book defined an item rather than a location; the animated characters did not 'learn about the location'; there was no use of any 'individual special objects'; and the three animal characters stayed in the book at the end. He also noted other differences too, such as the way in which the boy interacted with the three animal characters, and the use of comedy and song, in the Dinamo's programme.

The Abadas
Thirdly, Massey did not put forward any answer to these two problems or given any reason why Recorder Campbell should assume that his case would improve. Indeed had Massey done so, the Recorder would have been prepared to consider whether the case should have gone forward to a half day hearing, but it appears that Massey had not engaged with Dinamo's case at all.

Fourthly, the need to be fair to Massey had to be balanced with the need to be fair to Dinamo. In circumstances where Massey had done nothing to address the major criticisms of his case which have been made by Dinamo, it was not incumbent upon the Court to fight Massey's case for him or to require Dinamo to incur the time and expense of preparing for trial.

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