7 Rolls Buildings,
London EC4A 1NL
B e f o r e :
| RESHAUN MICHAEL MASSEY (CHILD)
|- and -
|DINAMO PRODUCTIONS LIMITED
Hywel Williams of the Defendant for the Defendant
Determined on paper
Crown Copyright ©
Mr Recorder Douglas Campbell:
The nature of the case
(a) That the Claimant created a synopsis of a children's television programme called "The Wevils" on 19th July 2010, with a second draft following on 2nd August 2010 and a pilot script on 17th September 2010.
(b) That the Claimant sent the first draft to Cbeebies, which I take to be a reference to the BBC children's television department, on July 21st and 23rd 2010.
(c) That the Claimant had originally issued proceedings against "their coproduction company", seeking £2 million, and that despite the failure of this party to respond to proceedings the Claimant decided not to apply for summary judgment against them. Although not clear from the Particulars of Claim, it seems that this is a reference to a company called Kavaleer Productions Limited ("Kavaleer").
(d) That there are 5 similarities between the Defendant's program called 'The Wordles" and "the submissions I sent". These are:i. "Opens in on a nursery (house in theirs)"ii. "Get the picture book out of the toy box"iii. "Open the picture book and it comes to life""Be transported to a location each episode whilst learning about the location"The similarities between the name they previously entitled 'Abadas – The Wordles' to 'The Wevils".
(e) The Claimant states "The remedy that I am seeking is £2million in compensation for loss of production of my show along with subsequent distribution and merchandising losses. My second is the ban and cancellation of 'Abadas' from airwaves worldwide."
(a) The program in question was originally called "Quelle?" and was created on 3rd February 2009 by Ms Siwan Jobbins of the Defendant. There is a 2page treatment of the concept which is attached to an email of this date. This shows that the show was intended to be aimed at pre-schoolers and to have 3 characters. The object was to introduce a new word (eg "ball") to the characters and to have one of the characters go looking for it.
(b) By 10th March 2009 the concept had developed. In a 5-page treatment which is attached to an email of that date from Ms Jobbins, the name had become "The Wordtastics". The concept of introducing viewers to a new word remained, but this time the word (eg "flower") came from a popup book contained in a young boy's bedroom.
(c) On 11th March 2009, a further email from Ms Jobbins introduces the name "Wordles" for the program. I should mention that "Abadas" is another name for the same program.
(d) On 25th March 2009, a further email from Ms Jobbins contained further development of the concept. There was to be a title sequence which included live action of a young boy opening a large pop-up book, which then turned into animated fantasy of the three characters.
(e) On 15th and 18th June 2009, Ms Jobbins created first and second drafts of a script for an episode of "The Wordles". The word was "flower". The Wordles characters were animated animals called Hugo the Hippo, Todd the Fox, and Pip the bat. The boy was called Alex.
(f) In the script there is much visual comedy, and verbal interplay between Alex and the three characters. The three characters sing songs and learn about flowers. Todd is chosen to find a flower because he has a good sense of smell. He has minor accidents with a slide and trampoline until he finds the flower. There is a final song, and the animation gives way to a live action shot of the book shutting.
(g) The project attracted interest from a number of third parties in 2009. This included an Irish company called TG4 on 15th May 2009; S4C, the Welsh TV station on 18th September 2009; and RTE, the Irish broadcaster, on 19th November 2009. There is also a letter from Parthenon Entertainment expressing an intention to enter into a Distribution Agreement for The Wordles on 25th November 2009.
(h) The Defendant claims that it had never heard of the Claimant until his correspondence with Kavaleer in December 2011, and that it never received any correspondence from the Claimant until his claim form dated 30th January 2012.
(a) This is a children's animation program aimed at the 3-6 age group. There are 6 main characters, all human and all around 4 years old. There is Nina the feisty girl; Jaylin the shy girl; Rain-ying who is said to be "the Braun of the group"; Cooper the 5 year old boy who prefers not to play with the younger children; Fletcher the puzzle solver, who is in a wheelchair throughout the show; and Boo, the "simple minded" boy who is always falling asleep.
(b) Every week they meet in a nursery and find a "Book of Wonders" which transports them to a different location when they all touch a picture in the book. Examples are given of a castle, lake, or zoo.
(c) Each child has an "individual special object (flashlight pen, stretchy diaper, microscope glasses etc)"
(d) When they arrive at the location, they go on an adventure "to fully understand the new words learnt". It is not clear what the "new words" referred to are.
(e) Whilst at the location, each child uses his or her individual special object in order to solve a challenge.
(f) After the adventure, they all return home via the Book of Wonders.
i. "Opens as the viewers enter a house ('The Wevils' is a nursery)"
ii. "Get the picture book out of the toy box (Exactly)"
iii. "Open the picture book and it comes to life (Exactly)""Be transported to a location each episode (Exactly)""Learn the word of the location or a work linked to an idea whilst also finding it (Exactly)"
vi. "The only difference is that you've used a mixture of live action and animation with added animal main characters"
vii. Final similarity – when you started pro production with no full finance yet in May 2011 (3 months after my email) you dubbed it 'The Wordles' which is highly similar to 'The Wevils"
The legal approach
"The power of the court to strike out a statement of case under CPR 3.4(2)(a) — and the related power to give summary judgment under CPR 24.2 — has an important place in the disposal of claims in accordance with the Civil Procedural Rules . As Lord Woolf M.R. pointed out in Swain v Hillman and another  1 All ER 91 , 94 b–c , the exercise of those powers, in an appropriate case, gives effect to the overriding objective set out in CPR Part 1 :
"… It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no useful purpose; and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position …."
The Claimant's case
a) Whether the Defendant had had access to the Claimant's work: See  of Allen. Kitchin J found that the evidence served on behalf of the Defendant was "very powerful", and that the Claimant had no direct evidence with which to challenge it: see . However he also took into account the fact that the author had failed to disclose relevant documents showing how she had created her work (see ); and the fact that the Claimant's case was supported by two independent academic experts who gave detailed reasons for their views (see  and ). One expert was Mr Nicholas Tucker, a former Senior Lecturer in Cultural Studies at the University of Sussex and a specialist in the study of children's literature. He identified plot similarities which he considered to be significant in the context of children's literature. The second expert was Dr Timothy Grant, the Deputy Director and a founding member of the Centre for Forensic Linguistics in the School of Languages and Social Sciences at Aston University. He identified linguistic similarities.
b) Whether the similarities relied upon amounted to a substantial part of the Claimant's work: see -. The issue was whether the Defendant had copied the expression of the Claimant's original collection, selection, arrangement, and structure of literary material or merely (in which case there was infringement) or if the Defendant's work merely replicated or used items of information, facts, ideas, theories, arguments, themes (in which case there was no infringement). Kitchin J "strongly [inclined]" to the view that the Defendant's use, if any, fell on the wrong side of the line as being no more than relatively simple ideas at a high level of generality, but felt unable to say the Claimant's case was so bad as to be fanciful.
"36 I concluded that it is improbable that the claim will ultimately succeed. In the result, the application for summary judgment failed by the narrowest of margins. This is not a case which is merely somewhat weak and it is, in my judgment, one of those occasions where the prospects of success are so poor that they do justify the exercise of the jurisdiction conferred by r.24.6.
1) First, the Claimant's case suffers from the two fundamental problems identified above. Even bearing in mind the need for caution at this early stage of the litigation, it seems to me that the Claimant's case is bound to fail.
2) Secondly, the Claimant has not put forward any answer to these problems (as the Claimant did in Allen) or given any reason why I should assume that its case will improve. If the Claimant had done so, then I would have been prepared to consider whether the case should go forward to a half day hearing but it does not appear that he has engaged with the Defendant's case at all. Just as appears to have happened in relation to the Claimant's own action against Kavaleer on the same subject matter, he appears to have lost interest in his litigation at a very early stage of the proceedings.
3) Thirdly, the need to be fair to the Claimant has to be balanced with the need to be fair to the Defendant. In circumstances where the Claimant has done nothing to address the major criticisms of his case which have been made by the Defendant, it is not incumbent upon the Court to fight the Claimant's case for him or to require the Defendant to incur the time and expense of preparing for trial.