7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| (1) PAUL HODGSON
(2) MICHAEL JARVIE
|- and -
|(1) ANDREW ISAAC
(2) NOTTING HILL MOVIES LIMITED
Andrew Isaac represented himself and the Second Defendant
Hearing dates: 15th November 2011
Crown Copyright ©
His Honour Judge Birss QC :
124. The following issues frequently arise for decision in proceedings for infringement of literary copyright under the 1988 Act. Although this is not an exhaustive check list, the following are worth bearing in mind as issues that will usually need to be considered, preferably in a chronological setting or, in more complicated cases, of sub-sets of chronologies.
(1) What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying and an allegation of infringement should never get as far as legal proceedings, let alone a trial. The 1988 Act confers on the owner the exclusive right "to copy the work" either directly or indirectly (section 16). This is not an exclusive right to prevent the publication of a work on a similar subject or a work which happens to contain similar material, thematic or otherwise.
(2) What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential if the Claimants are to prove that the Defendant's work is a copy.
(3) Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work?
(4) If the Defendant contends that no such use was made, what is his explanation for the similarities between the alleged infringing work and the original copyright work? Are they, for example, coincidental? Or are they explained by the use of similar sources? If the latter, what are the common sources which explain the similarities? How were the sources used by the authors of the respective works?
(5) If, however, use was made of the original copyright work in producing the alleged infringing work, did it amount, in all the circumstances, to "a substantial part" of the original work? The acts restricted by the copyright in a literary work are to the doing of them "in relation to the work as a whole or any substantial part of it". See section 16(3) (b) of the 1988 Act.
(6) What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as "a substantial part" of the original copyright work?
It is often said, as Morritt L.J. said in this case, that copyright subsists not in ideas but in the form in which the ideas are expressed. The distinction between expression and ideas finds a place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (O.J. 1994 L. 336 p. 213), to which the United Kingdom is a party (see article 9.2: "Copyright protection shall extend to expressions and not to ideas…"). Nevertheless, it needs to be handled with care. What does it mean? As Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd.  R.P.C. 551, 629, "it all depends on what you mean by 'ideas'."
Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds, can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.  1 W.L.R. 273 establishes that substantiality depends upon quality rather than quantity (Lord Reid at p. 276, Lord Evershed at p. 283, Lord Hodson at p. 288, Lord Pearce at p. 293). And there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work.
Once the judge has found that the defendants' design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work, as I have already pointed out. The pirated part is considered on its own (see Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.  1 W.L.R. 273, 293 per Lord Pearce) and its importance to the copyright work assessed. There is no need to look at the infringing work for this purpose.
When I was just a little boy,
I asked my mamma, 'what should I be?
Should I be Darlo?
Should I be Poolie?'
Here's what she said to me:
'Wash you mouth out son,
Go get your father's gun,
And shoot the Poolie scum,
shoot the Poolie scum.'
Down Among the Dead Men
(i) Scenes 1-4: Introduction: Paul's meningitis as a baby, which was thought to be flu. It is the cause of his disability. Strikingly scene 1 starts with a voice over (sung to the tune of Que Sera Sera) which is the Darlo / Poolie football chant appearing at the start of Flipper's Side.
(ii) Scenes 5-7: Paul at the "Percey" Hedley School, paying his father 50p for a lift to school and being able to tell the time to the surprise of his teacher.
(iii) Scenes 8-12: Paul's life on a council estate, a council house with no staircase because the wood has been removed and is being burnt, the boiler has also been sold.
(iv) Scenes 13-16: Paul's father Norman showing him his pigeons.
(v) Scenes 17-27: Paul's life at school. This involves an episode in which Paul is the goalkeeper for the school football team and saves a penalty when the football bounces of his head, hits the goalpost and does not go into the goal. His team are losing 27-0.
(vi) Scenes 28-29: Paul and his friends have left school, Paul is jobless.
(vii) Scenes 30-37: Paul tries to get a job. He encounters prejudice and discrimination as a disabled person. At a job interview with an accounting firm the interviewer is surprised to discover that he is in a wheelchair.
He seeks other jobs too without success. Paul's nickname "Flipper" is mentioned as is the football background.
(viii) Scenes 38-41: Complaining about discrimination to the local council. Paul and his friend Ian go to the council offices to see the disability officer and encounter an imposing staircase (which is obviously a problem for a wheelchair user).
(ix) Scenes 41-45: Paul goes to hospital. There is a sex scene between Paul and a pretty nurse.
(x) Scenes 46-49: Paul and his mother are shopping. Paul's disability is a key feature in this scene.
(xi) Scenes 50-52: Paul is at work. There is a manager with a wig and an episode in which a prank is played on a new employee involving overalls, rubber gloves and a curry the night before.
(xii) Scenes 53-55: Paul's mother Alice has a stroke and is in hospital. There is another sex scene between Paul and a nurse.
(xiii) Scenes 56-58: An episode about Darlington FC football shirts.
(xiv) Scenes 59-62: An episode at Paul's workplace, involving rubber bands and staples and the manager with a wig.
(xv) Scenes 63-68: Paul and his friends watch Darlington FC play Carlisle. A character called Mad Tony appears. Darlington are in financial difficulties.
(xvi) Scenes 69-71: Alice has another stroke. Her health problems mean Paul has to have a carer for the first time. There is a mention of the fact Paul is working for the supporters club.
(xvii) Scenes 72-74 Paul and Ian go to a football match. Paul runs onto the pitch and saves a goal.
(xviii) Scenes 75-83: Paul and his friends (inc Mad Tony) follow Darlington FC to a match at Exeter. They visit Exeter Cathedral. They experience football violence.
(xix) Scenes 84-88: Paul and his friends (Inc Mad Tony) go to London. Paul's friends Brian and Ian share the same bed.
(xx) Scenes 89-90 Alice is unwell
(xxi) Scenes 91-95: Paul and his friends trick two men into buying Paul's cheap watch for 100s of pounds
(xxii) Scenes 96-98: Paul is arrested by the Police, accused of stealing from Darlington FC but he has an alibi because he was watching them play at the time
(xxiii) Scenes 99-105: Alice dies, Paul's sisters blame him for her death and refuse to let him attend the funeral. Paul attempts suicide. Paul and his father Norman are reconciled.
(xxiv) Scenes 106-127: Paul and Ian walk to Scunthorpe to see Darlington FC play, the match is played, and Darlington win. The walk was carried out to save Darlington FC and attracts media attention from all over the world. By winning the game Darlington are saved and the film ends on an uplifting note.
Comparison between the two works
The evidence of the witnesses
Conclusion on the issue of copying