Obisanya v Ellis & Anor

Copyright infringement requires evidence that the defendant copied the claimant’s work, directly or indirectly, in whole or in a substantial part. Access is essential to an inference of copying. Where chronology provides no realistic opportunity for access, and the alleged similarities concern commonplace ideas, settings or features, the claim may have no reasonable prospect of success.

Substantiality is assessed qualitatively rather than quantitatively. A court may grant summary judgment where the claim is speculative and lacks an evidential foundation. An injunction restraining repetition of unfounded allegations may also be granted where the allegations are serious and suitable undertakings are refused.

Elizabeth Obisanya claimed that Sean Ellis and Cashback Films Ltd had infringed copyright in her screenplay, Cashback Paper or Plastic, by creating and producing a short film and feature film called Cashback.

The defendants applied for summary judgment on the copyright claim and sought a declaration of non-infringement and an injunction restraining further allegations that they had stolen or copied the screenplay. The central issues were whether the defendants could have accessed the claimant’s screenplay and whether the alleged similarities were sufficiently substantial to support an inference of copying.

1. The defendants’ application for summary judgment succeeded. The copyright claim had no reasonable prospect of success and there was no other compelling reason for it to proceed to trial.
2. Under sections 16 and 17 of the 1988 Act, infringement required an unauthorised act restricted by copyright, including copying the whole work or a substantial part. Copying could occur indirectly and could take place through a different screenplay or a film. The court accepted the summary of relevant principles in Baigent v Random House, [2007] EWCA Civ 247, [2007] Fleet Street Reports 24, and the qualitative approach to substantiality in Designer’s Guild v Russell Williams, [2000] 1 WLR 2416.
3. The chronology supplied no evidential basis for access. The short screenplay had been created in December 2002, and the short had been filmed by June 2003. The claimant’s own evidence was that her screenplay was not completed until July 2003. Her suggestions that earlier drafts might have reached the defendants were speculative, unsupported by her pleadings or evidence, and contradicted by the defendants’ evidence.
4. The alleged similarities were insufficient. The title, supermarket setting, checkout protagonist, busty woman and offer of cashback were commonplace features of modern life or of a film concerning boredom behind a supermarket till. They could not justify an inference that one work had been copied from the other, particularly in view of the substantial differences in genre, plot, characters and themes.
5. The counterclaim succeeded. A declaration of non-infringement followed from dismissal of the claim. An injunction was also justified because the claimant had made numerous damaging allegations to trade bodies, similar allegations remained on her website, and she had refused suitable undertakings. The injunction was confined to repeating allegations found to be ill-founded in the action.