Donna Molavi v Virginia Gilbert & Ors

At summary judgment stage, an inference of copyright copying based on similarity must be reasonably arguable. Similarities arising from common dramatic tropes, ordinary language, generic settings, or basic human conduct cannot, alone or cumulatively, support that inference. The court must assess alleged plot and detailed similarities in the round, while recognising that superficial similarities may conceal substantial differences in plot, causation and narrative function. Where copyright infringement and breach of confidence claims depend on the same alleged copying, both may be determined together. If the pleaded similarities cannot arguably support copying, summary judgment is appropriate.

The claimant, a screenplay writer, alleged that the defendants had infringed copyright in five works and misused confidential information by developing and broadcasting two episodes of Silent Witness entitled Betrayal. The defendants applied for summary judgment under Civil Procedure Rules 1998, Part 24.2, contending that the claimant had no real prospect of establishing access to her works or copying.

The claimant relied on inferred copying from alleged similarities in overall plot, scenes, narrative details and language. The court considered whether those similarities, individually or cumulatively, disclosed an arguable inference of copying, and whether the related breach of confidence claim should proceed.

1. Summary judgment. The application was determined by asking whether the pleaded inference of copying was arguable. The court should not conduct a mini-trial by attaching undue weight to factual evidence that was properly assessable at trial: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Company 100 Ltd [2006] EWCA Civ 661.
2. Plot similarities. Generic similarities, including a forensic pathology setting, forensic pathologist protagonists, professional criticism, reputational risk, personal distraction, disputed post-mortem findings and investigation of alleged interference, were insufficient. Stories commonly use a limited range of dramatic themes and devices. An inference of copying requires similarities that go beyond such shared tropes and must be assessed against the works’ overall plots.
3. Detailed similarities. Commonly understood language, ordinary expressions and basic human conduct cannot support an inference of copying. The alleged linguistic and narrative similarities, whether considered separately or collectively, were consistent with the articulation of materially different plots.
4. Overall assessment. The claimant’s works concerned an incompletely developed political and possible assassination plot. The defendants’ works concerned the deliberate undermining of forensic evidence, together with a separate pharmaceutical investigation. The works were not sufficiently similar to make copying arguable.
5. Disposition. The copyright infringement and breach of confidence claims both failed at the summary judgment stage. Summary judgment was entered for the defendants, and permission to amend the Particulars of Claim was refused. The unissued application for a conditional payment order was not determined.