Infringement - Artistic work

Hodgson and another v Isaac and another: Patents County Court (Judge Birss QC): 5 December 2011

The proceedings arose out of the writing of an autobiographical book (the book) in 2000 by the first claimant, who was disabled as a result of meningitis. The book told of his life as a supporter of Darlington Football Club (the club) and his experiences. It included a football chant used by supporters of the club. The second claimant helped the first claimant to write the book. In 2001, the claimants worked with S Ltd, a film company, to write a script based on the book (the first script). In 2006, the relationship between the claimants and S Ltd broke down.

The first defendant was a script writer who owned the second defendant company. In 2006, he became involved with the first claimant as part of a project, the objective of which was to make a film based on the first claimant's life story, and subsequently wrote a script (the script). That script told of a man who, having been disabled by meningitis, became a supporter of the club. It included, inter alia, the football chant quoted in the book. The claimants and first defendant formed a company to promote the script. A dispute arose regarding alterations to the script requested by the first claimant, and subsequently the first claimant withdrew any permission the first defendant had to use an adaptation of the book. The first defendant stated that he did not require the first claimant's permission to exploit the script, because it was not an adaptation of the book. The claimants subsequently issued proceedings for breach of copyright.

The issue was whether the script was an adaptation of the book. The claimants did not seek to contend that they had any right to object to the script if it was only based on conversation with the first claimant, and not directly or indirectly on the book. The defendant contended that he had written the script after conversations with the first claimant, and that he had never read the book. The claim would be allowed.

On the case law, it was necessary to consider whether the elements taken from the book were the expression of the intellectual creation of their author. When the book and script were considered as a whole, it was clear that the plot, characters and striking incidents and events were very similar. In as much as it was possible or meaningful to quantify such things, roughly half of the dramatic incidents in the script had been derived from the book. On the evidence, the first defendant had had access to the book when writing the script.

Given that the defendant had clearly copied part of the first script, since he had had permission to do so at the time, there was no reason why he would not have felt free to base his work on the book itself. In particular, the use of the football chant included in the book had to have come from the book itself.

In addition to the use of the main characters and many of the settings and contexts of the book, the script used specific and striking incidents from the book and employed the same interpretation of those incidents as given by the claimants. The details and incidents reproduced and their interpretation were a key element in the book. The fact that they were presented as factual rather than fictional did not make a difference, at least in the instant case, for the work of producing an autobiography was an intellectual effort of creation on its own (see [69], [70], [74], [77]-[82] of the judgment).

The script had reproduced a substantial part of the book (see [83] of the judgment).

Ravenscroft v Herbert [1980] RPC 193 applied; Infopaq International A/S v Danske Dagblades Forening: C-5/08 [2009] All ER (D) 212 (Aug) applied.

James Marwick (instructed by Endeavour Partnership LLP) for the claimants; the defendant appeared in person.