Kerwhizz kapows copyright infringement claim

As many readers will be aware, children's character merchandising is big business. And with any big business like this there often comes the risk that an unrelated party will claim that it had created the now phenonemally popular characters and seek a remedy for copyright infringement. One such instance occurred recently when a cartoonist tried to sue the BBC for millions by claiming that CBeebies bosses copied his characters: Michael Mitchell v BBC [2011] EWPCC 42. This week Mr Mitchell's claims for copyright infringement were refused by Judge Colin Birss QC sitting in the (still misnamed) Patents County Court.

Mr Mitchell alleged that the BBC had copied characters which he had created for a proposed multiracial ‘eco warrior’ children's TV show ‘The Bounce Bunch’ for its popular children's TV show 'Kerwhizz'. Mr Mitchell claimed that he created the characters in 2004 and had made the characters available online from around 2005. In October 2007, Mr Mitchell supplied his concept for the characters to the BBC Department dealing with programmes for children aged 6-12 years. In May 2008, the BBC decided not to pursue the project and informed Mr Mitchen. Mr Mitchell sought £2 million in damages for the 'striking similarities' between 'The Bounce Bunch' and 'Kerwhizz' characters which he claimed during the hearing were 'obvious to even a child'.

The BBC strongly denied the claim. It stated that Mr Mitchell's concept did not reach the department handling Kerwhizz as Kerwhizz is aimed at the 4 to 6 year old age group. Accordingly. it contended that its designers were not aware of Mr Mitchell's work and that the 'Kerwhizz' characters were developed from an original idea conceived in December 2005 and influenced by Japanese manga robot characters. At the hearing, counsel for the BBC categorised Mr Mitchell's demands for millions in compensation as 'little more than blackmail' and 'extremely offensive to the [Kerwhizz] designers ... [whose] whole integrity is being impugned'.

Judge Birss QC approached the case in three stages. First, he considered Mr Mitchell's case about access and his case that the similarities were such as to shift the onus onto the BBC to explain how its designs arose. Second, he considered the BBC's positive case, that the Kerwhizz characters were designed independently of the Bounce Bunch. Third, he considered the matters overall and whether infringement had been made out, bearing in mind in particular Mr Mitchell's case on subconscious copying.

Access and Similarities

Judge Birss noted (at [9]) that Mr Mitchell's case on access on the internet had 'developed somewhat over time'. On the evidence, he was not satisfied (at [58]) that the main Bounch Bunch artwork was available to anyone before 2007. Therefore, any influence from the Bounce Bunch on Kerwhizz, if it happened, must have happened from 2007 onwards. Given that Mr Mitchell sent his concept to the BBC in October 2007, without considering the case of the BBC, it seemed to Judge Birss (at [53]) that there was at least sufficient evidence that someone could have had access to the Bounce Bunch for it to be appropriate to consider whether the similarities relied on, coupled with that evidence of a possibility of access, raise an inference of copying.

Judge Birss (at [54]) observed that although side by side the characters looked quite different and many of the similarities were at a high level of generality, there were a number of points which, prima facie, supported Mr Mitchell's case. These were the combination of the fact that the characters wear a form of armour with helmets and microphones, the colour scheme used for the three characters in Kerwhizz, and their ethnic mixture. In addition to this, a particular element which stood out was the blond hair flick or quiff on the blue suited character (Charlie/Twist). Although none of these points on their own would have been sufficient to raise an inference of copying, when they are considered as a combination, it seemed to Judge Birss (at [54]) that the onus then shifted to the BBC to explain how the Kerwhizz characters were produced.

Independent creation


The BBC denied that Mr Mitchell's designs had any influence on Kerwhizz at all. To support its position, the BBC provided detailed evidence from a number of relevant witnesses to explain what happened and how Kerwhizz came to be made. This evidence was almost entirely unchallenged by Mr Mitchell at the hearing.

Judge Birss found (at [105]) that the evidence in support of this part of the BBC's case was 'overwhelming' and he accepted that the relevant individuals who provided witness statements could not be said to have been aware of the Bounce Bunch at any relevant time. Judge Birss further found (at [105]) that the account given by these individuals left 'no room for a case of deliberate or conscious copying by any of them'. The qualification of 'deliberately or consciously' was included by Judge Birss because of the final argument on subconscious copying.

Subconcious copying


There were three elements which Judge Birss considered in relation to this issue: the degree of familiarity with the Bounce Bunch; the character of the work; and, the degree of objective similarity between the Bounce Bunch and the Kerwhizz characters.

After considering these factors in detail, Judge Birss found (at [143]) that the evidence did not support an inference of subconscious copying. This was because none of the designers were familiar with the Bounce Bunch at all. They were not aware that the designs were ever seen and there was simply no evidence the relevant people saw the Bounce Bunch albeit that they have now forgotten that they did. Further, Judge Birss found (at [144]) that the Bounce Bunch were not especially memorable. Even if they were seen, there was no reason why they would be retained. The similarities were not non-existent, but they are at a high level of generality. As Judge Birss had already accepted the BBC's account about how the designs came to be produced, he stated (at [144]) that it was 'utterly implausible' to graft a subconscious copying argument: there were cogent explanations for the origin of all the features and no reason to resort to a subconscious influence from the Bounce Bunch to explain Kerwhizz.

Accordingly, Judge Birss concluded (at [147]) that the Kerwhizz characters did not infringe Mr Mitchell's copyright and dismissed the action.

This Kat believes that this case illustrates the slippery nature of an allegation of subsconcious copying when it is combined with the reality of the internet. Given that so much information is now available to people, can one ever really rule out a case of subconscious influence?

If Merpel was ever involved in a subconscious copying case, she considers that she would be 'especially memorable'.