Joyce Carole Becker-Douglas v Bonnier Books UK Group Holdings Limited & Ors

On summary judgment, a copyright claim based on copying requires a realistic evidential case of similarity and direct or indirect access. Access may be inferred from similarity only where the similarities are sufficiently distinctive and there is no adequate alternative explanation. Copyright protects expression, not general ideas, themes, styles or commonplace elements.

The court may evaluate evidence without conducting a mini-trial. It may reject speculative, implausible or unsupported factual allegations, particularly where contemporaneous documents provide a coherent account. Where there is no realistic prospect that evidence will improve at trial, the claim may be dismissed without trial.

The claimant, an author and creator of children’s works concerning Jimmy Whizz and a flying bicycle, alleged that the defendants’ Flying Fergus books copied her copyright works and misused confidential information. She relied on alleged similarities and inferred access through publishers, literary agents and individuals who had worked for organisations to which she had submitted material.

The defendants applied for summary judgment under Civil Procedure Rules 1998 Part 24, alternatively seeking strike out under Part 3.4(2)(a). The central issues were whether the claimant had a realistic prospect of proving access, copying and substantial reproduction, and whether the confidentiality claim could survive if copying or unauthorised use could not realistically be established.

1. Application granted. The copyright and confidentiality claims were dismissed on summary judgment. The court also considered that there was no other compelling reason for the claims to proceed to trial.
2. The court applied the established summary-judgment principles. A realistic prospect is more than a merely arguable or fanciful case. The court must avoid a mini-trial, but it may evaluate evidence and reject factual assertions which are implausible, self-contradictory, unsupported by material or contradicted by contemporaneous documents. It must also consider evidence reasonably expected to be available at trial.
3. For copyright copying, the claimant had to establish at least sufficient similarity between the alleged infringing and original works together with direct or indirect access. Access was an essential element, although in an appropriate case it could be inferred from distinctive similarity where there was no sufficient explanation. The court adopted the structured approach identified in Baigent v Random House Group Ltd, including consideration of similarity, access, use of derived material, explanations for similarities and substantiality.
4. The alleged access route was purely speculative. The contemporaneous evidence showed that the principal Flying Fergus features had been created before the relevant publisher became involved, and the proposed illustrations were based on earlier material and did not resemble the claimant’s illustrations. The alleged approach by a literary agent concerned a different project and did not involve a magic bicycle.
5. The alleged similarities were incapable of founding an inference of access or copying. Flying bicycles, parallel worlds, medieval settings, young protagonists and eccentric adults were commonplace ideas. The textual similarities, considered individually and cumulatively, were commonplaces. The plots, characters, illustrations, style and content were materially different.
6. There was therefore no realistic prospect of proving copying. The confidentiality claim necessarily failed because there was no realistic prospect of proving unauthorised use of the claimant’s works. The court stated that, had it reached the opposite conclusion, it would nevertheless have struck out the identified unsustainable parts of the claim.