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On the set of Katurday Night Live....
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In a
recent decision ([2025] EWHC 39 (IPEC)) on the alleged infringement of copyright in a TV format, the Intellectual Property Enterprise Court (IPEC) of the High Court of England & Wales (the Court) held that the collection of features on which the show was based was insufficient to constitute a protected dramatic work.
Background
The Claimant, Joshua Rinkoff (Mr Rinkoff), is a writer and comedian who performs under the name Harry Deansway, and the creator of a show called "Shambles", which ran for two seasons and was centred around a live comedy night, combining very short clips of live comedy with behind-the-scenes narrative in the form of a sitcom.
The Defendant company, Baby Cow Productions Ltd (Baby Cow), is a well-known producer of comedy shows, including its series “Live at the Moth Club” (LATMC), which was broadcast on the TV channel Dave and later made available for streaming.
Like Shambles, LATMC also combined comedic backstage elements with excerpts from the comedians’ sets (unsurprisingly, from the Moth Club in Camden), albeit such excerpts were considerably longer than those in Shambles.
The moving force behind LATMC was Rupert Majendie (Mr Majendie), who worked for Baby Cow and also had a lengthy career in comedy, through which he had met (and at some point been friendly with) Mr Rinkoff.
Mr Rinkoff's solicitors wrote a letter of claim to Baby Cow in December 2022, alleging infringement of copyright in the Shambles format, identifying the principle similarity as the combination of a "narrative sitcom with a live stand-up show case". They accepted that no single one of the features present in both shows would give rise to a claim, but said that the number of similarities plus the fact that “the creator” of LATMC (i.e. Mr Majendie) was “clearly familiar” with Shambles led to an inescapable conclusion of copying.
Baby Cow disputed the claim, and proceedings were issued in May 2023.
The main issues for the Court to decide were:
- Whether the format relied upon was protectable as a dramatic work for the purposes of the Copyright Designs and Patents Act 1988 (CDPA 1988); and
- If so, whether copyright in the Shambles format had been infringed by LATMC.
The Court's ruling
Is a television format protectable by copryight?
The bulk of the Court's judgment in this case focussed on the issue of whether the format of a TV show is in fact protectable by copyright and, if so, whether it is protectable as a dramatic work.
It is worth recalling that (as recently highlighted in the infamous
WaterRower judgment, reported on by Katfriends
here) English law still has a closed list of categories of works which can benefit from copyright protection.
It is of course a key principle of copyright law that it does not protect ideas, only the expression of such ideas (per
Infopaq, C-5/08,
Levola Hengelo, C-310/17, and others), and the same applies in respect of dramatic works.
The Court took as a starting point the Court of Appeal's judgment in
Norowzian v Arks Limited (No. 2) [2000] F.S.R. 363, in which it was held that the expression "dramatic work” should be given its "natural and ordinary meaning", which is that it is a "work of action, with or without words or music, which is capable of being performed before an audience".
This was developed upon in
Kogan v Martin [2017] EWHC 2927 (IPEC), which concerned joint authorship in a film screenplay, which was held to be "more accurately described as a dramatic work, as its primary purpose lies in being performed, as opposed to being read, like a novel.” What was protected in a screenplay was the skill and effort involved by the writer in "creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing".
Although it appeared settled, therefore, that a screenplay is a dramatic work, neither party's counsel could identify any UK case in which a format had been successfully found to be a dramatic work.
Nevertheless, the Court took guidance from
Copinger on Copyright, in which it was observed from relevant case-law (including the recent
Banner case, covered by the IPKat
here) that copyright protection for formats had typically been refused on the grounds that there was insufficient certainty as to the content of the work and that it possessed insufficient unity to be capable of performance.
It was however at least arguable (as held in Banner) that they could be protected as dramatic works, if (at a minimum) two conditions were satisfied:
- There must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type; and
- Those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
Shambles
Turning to Shambles, one of the questions the Court had to first address was, if Shambles did have a format, what documents (if any) this format subsisted in, given the heavily improvised nature of the show. The Court went through a number of documents prepared by Mr Rinkoff in respect of the Shambles series, including "breakdown notes", a "filming information document", a press release, and a document prepared in advance of the second season of the show, called "Shambles Philosophy".
The breakdown notes set out a high level plotline to be followed in each episode, based on the Shambles Philosophy; these notes were used to guide the improvisation of each show, and there was never a complete script. The Philosophy itself stated: "We need to approach it like we are filming a documentary", and included references to "embracing chaos" and actors being allowed to have "instinctual reactions" to what was happening around them.
Mr Rinkoff's pleaded claim was that Shambles' format subsisted in the unique combination of eight features, which taken together formed a coherent whole. These features included the setting (i.e. in a comedy club), the use of certain filming techniques and one line descriptions of three of the characters.
Again, in respect of the heavily improvised nature of Shambles, the Court referred to Copinger, which stated: "the improvisation may be part of the dramatic structure of the work, but what the actor actually does while improvising cannot, it is suggested, be part of the original dramatic work".
Having considered the above, the Court found that the eight pleaded features could not constitute a dramatic work, because (inter alia):
- Mr Rinkoff had not pleaded that all eight features were present in all episodes of Shambles, and the Court considered that he could not do so;
- Although the central idea of Shambles was to combine live comedy sets with a behind the scenes sitcom, the eight features were not connected with each other in a coherent framework, and they did not set out a formula which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
- The pleaded features of Shambles were not organised into a unified work which could be performed, which is the essence of a dramatic work.
Infringement
The Court nevertheless also turned to an assessment of infringement.
Despite certain similarities in characters and concept, the Court found that these similarities did not raise an inference of copying. The main complaint advanced by Mr Rinkoff was that LATMC is set in an almost identical setting (a run-down comedy venue) and combines scenes of real comedians performing on stage with backstage scenes featuring a range of fictional characters.
However, in the Court's judgment, although LATMC may have the same central underlying idea as Shambles, the similarity is at an extremely high level of generality. Not only were the live comedy elements of LATMC far more significant than in Shambles, the overall premise of LATMC was also much less a sitcom and much more of a faux documentary (which was highlighted by the backstage characters of LATMC breaching the fourth wall by speaking directly to the camera). Similarities in the characters themselves were generally found suggest the use of commonplace, "stock" characters, rather than raising an inference of copying.
The claim for infringement therefore failed as well.
This judgment is a helpful reminder of the somewhat uneasy relationship between copyright law and television formats. It was striking that neither party's counsel was able to come up with a single example of a successful format rights claim in the UK.
Someone not familiar with IP case-law might well have had sympathy for Mr Rinkoff finding out that, in effect, he has no way of preventing the copying of his show under UK copyright law (regardless of the fact that there appeared to be no copying in this occasion). That said the decision was clearly correct on the basis of established law, and it is a reminder to content creators to document as much as possible when coming up with new format ideas and concepts, keeping in mind that the end product must be something which could be reproduced in a recognisable form.
Having worked in the area of TV formats (previously) for some time, it is ironic that notwithstanding the lack of protection, trade (particularly international trade in TV formats by way of licensing arrangements is a multi billion pound business.
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