No interim injunction for copyright infringement => not a Happy Camper

A short ex tempore judgment by His Honour Judge Keyser QC (sitting as a High Court Judge) in Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch), published today, provides a succint reminder of the uphill struggle facing any claimant wishing to persuade the English court to grant an interim injunction to restrain alleged copyright infringement.

The basic facts of the claim will sound familiar to many: independent writer develops spec script (in this case dealing with life and death at a caravan site); writer meets producer; producer turns down script; producer later produces a television comedy drama (called Pitching In) with similar elements.

Coincidence? Well, in spite of the Claimant providing a lengthy schedule of alleged similarities between the script and Pitching In (which were not examined in detail at the hearing), the judge had doubts that the Claimant's case would hold up at trial. First, the copyright owner might have been one of the directors of the Claimant rather than the Claimant itself, and the court was not shown evidence that the work had been assigned. Second, the chronology of events called into question whether copying could have taken place, and the level of similarity between the script and the relevant episode of Pitching In did not appear to be sufficient to establish a presumption of copying.

Caravans: practical, and stylish

Things were not looking good for Happy Camper. Nevertheless, the judge dutifully ran through the standard American Cyanamid test for interim injunctions. (For readers less familiar with English law, this requires the court to ask (i) is there a serious question to be tried; and, if so (ii) are damages an adequate remedy; and (iii) what is the balance of convenience).

Readers are unlikely to be surprised that an interim injunction was not granted, but the court provided a relatively detailed judgment, which contains a few interesting points: 

• The judge appeared to be prepared to suspend disbelief and find that there was a serious question to be tried. This is perhaps unsurprising in light of the relatively low threshold of a "serious" (not frivolous or vexatious) claim, but this did appear to be a borderline case. Reading between the lines, the judge was perhaps a little more patient in his treatment of the Claimant than if Goliath (the BBC), not David (Happy Camper), had been the Claimant. 
• Damages would be an adequate remedy. Happy Camper was established to exploit its script commercially, by the licensing or sale of the copyright i.e. the script was only of commercial value to the Claimant. The judge considered that it would be difficult, but not impossible, to quantify the loss suffered by the Claimant were the court to find that the BBC infringed the Claimant's copyright. 
• Some aspects of the alleged infringement remained in the "threatened" rather than "complete" category: Pitching In had not yet been broadcast, and was due to be broadcast the evening after the hearing. But this did not sway the court regarding the balance of convenience. The Claimant could be compensated in damages. The script was written in 2013, and there was no evidence that the script had enjoyed commercial success at any stage. In contrast, the BBC was likely to suffer reputational harm (as well as financial harm) if it were to pull Pitching In from its schedule at the last minute. Not only this, but the BBC would lose a programme that was intended to contribute towards BBC One Wales' obligation to broadcast the requisite amount of Welsh content, without replacement content available. 
• Having known about Pitching In for around six months, the Claimant brought its application "woefully" late. The judge was therefore looking for "strong justification" to grant an interim injunction (which was absent). 
• Regarding the requisite cross-undertaking in damages, the court looked closely (and sceptically) at the Claimants' ability to pay. This was not an operative factor in the judgment, but it is one worth remembering in practice.