Joshua Rinkoff v Baby Cow Productions

Copyright protects the expression of an idea, not the idea itself. A television or comedy-show format may in principle qualify as a dramatic work, but only where its features are identified with sufficient precision and objectivity, form a coherent and unified framework, and can be repeatedly performed or reproduced in recognisable form.

General concepts such as a setting, character types, filming style, broad themes and the combination of live performance with backstage material remain unprotected. Copying must concern the whole work or a qualitatively substantial part. Similarities at a high level of generality do not establish copying or raise an inference of copying.

Joshua Rinkoff, a writer and comedian, claimed copyright in the format of two online comedy series, Shambles. He alleged that Baby Cow Productions Ltd infringed that copyright through its television series Live at the Moth Club.

The pleaded format comprised eight features, including a run-down comedy-club setting, a combination of sitcom scenes and live stand-up, interactions between fictional characters and performers or audience members, a documentary-style filming technique, and recurring characters. The court had to decide whether that format was an original dramatic work, whether the claimant owned any copyright, and whether the defendant had copied a substantial part.

1. Subsistence. The claim was confined to copyright in the pleaded format as a dramatic work. Copyright protects expression rather than ideas, and the work must be the author’s own intellectual creation and be identifiable with sufficient precision and objectivity. A dramatic work is a work of action, with or without words or music, capable of being performed before an audience (paras [37]-[52]).
2. Formats. A format may in principle be protected as a dramatic work. At minimum, it must contain clearly identified features which distinguish the show from others of a similar type, connected in a coherent framework capable of repeated application so that the show can be reproduced in recognisable form. The work must have sufficient unity to be capable of performance (paras [53]-[63]).
3. Application. The eight pleaded features were stated at too high a level of abstraction. They did not adequately identify the characters, plots or narrative framework, were not all present in every episode, and did not explain how the proposed combination could be performed or reproduced. They therefore described general ideas rather than a fixed dramatic work. The format was not protected by copyright (paras [64]-[75]).
4. Ownership. The Wildseed agreement assigned to Wildseed future copyright in New Content produced under the agreement. If copyright had subsisted in material forming part of the Series 2 format, copyright in that New Content would have belonged to Wildseed. No final determination of any divisible or joint ownership issue was necessary (paras [79]-[82]).
5. Infringement. Copying requires reproduction of the whole or a qualitatively substantial part of the work. The similarities relied on were general and reflected stock comedic devices or genre conventions. The evidence did not establish direct, indirect or unconscious copying, nor did it raise an inference that the defendant had copied the pleaded format (paras [83]-[95]).
6. Disposition. The claim failed. The court found that the format was not copyright-protected and, alternatively, that it had not been infringed.