England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings London EC4A 1NL
		05/12/2011

His Honour Judge Birss QC :

1. This is an action for copyright infringement. The work the subject of the action is the autobiography of the first claimant, Paul Hodgson. It is entitled Flipper's Side. It was self-published in the UK in 2000. Mr Hodgson was disabled as a result of childhood meningitis. He wrote the book to challenge the stereotype of the wheelchair-bound victim. The book tells the story of his life as a fan of Darlington Football Club, his relationship with his family, especially his mother and his experiences in school, employment and Community Care. He is known as Flipper to his close friends.
2. The second claimant, Michael Jarvie, helped Mr Hodgson write the book. The book starts with an acknowledgement that Mr Jarvie edited and word-processed Mr Hodgson's original audiotapes and states that the book would not have been possible without his invaluable assistance and creative input. Whether Mr Jarvie is a co-owner of the copyright is not clear. As published the book bears a copyright notice "Copyright © 2000 Paul Hodgson". The Particulars of Claim plead that Mr Jarvie was a co-author but by agreement copyright vested solely in Mr Hodgson and since 2009 Mr Jarvie has had a licence. The claimant's skeleton contends that Mr Jarvie is a co-owner. Since I am not aware that anything turns on it I will not decide whether the copyright is owned solely by Mr Hodgson or jointly by Mr Hodgson and Mr Jarvie.
3. The first defendant, Andrew Isaac, is a screen writer. He became involved with Mr Hodgson as part of a project whose objective was to make a film based on Mr Hodgson's life story. He wrote a script entitled "Down Among the Dead Men" in about 2008/2009 (the "DADM script"). The second defendant's name appears on the front cover as the copyright owner in the DADM script. It is Mr Isaac's company. In broad terms the DADM script tells the story of "Paul Hodgson", a wheelchair bound victim of childhood meningitis and a lifelong fan of Darlington Football Club. The claimants allege that the DADM script is an adaptation of the book. Mr Isaac denies that. His case is that he based the DADM script on his own creative input and also on conversations he had with Paul Hodgson about his life. Mr Isaac says he never read the book.
4. It is common ground that if the DADM script is an adaptation of Flipper's Side, then Mr Isaac does not have permission to reproduce it. To do so without permission would infringe Mr Hodgson's copyright.
5. Since the book is a biography, this case raises a set of circumstances which need to be treated with some care. If the book had been pure fiction, then there would really be no argument about the matter. The script is plainly telling a story similar to the one told in the book albeit that the text is entirely different and there are important scenes which are entirely consist of Mr Isaac's own creative work. However overall, if the story was fiction, the similarities between the works coupled with access to the original would raise a strong inference of copying. But the story in the book is not fiction. It is Mr Hodgson's life story. Everyone can recount episodes from their life which stand out in their memory. Most children have heard their parents recount the same stories of such episodes over and over again and in more or less identical terms. The claimants did not seek to contend that they had any right to object to the script if it was only based on conversations with Mr Hodgson and not on the book (directly or indirectly) and as a result I do not need to explore what the consequences might be if those are the facts.

The proceedings

6. The claim form was issued in the Newcastle County Court in August 2009. Particulars of Claim were served in August 2009 pleading a case that the DADM script was an adaptation of the "Work" (i.e. the book Flipper's Side). In September 2009 Mr Isaac filed his defence. This states that he never read the book, that he based the DADM script on talking with Mr Hodgson and that he had read a script written by someone else based on Mr Hodgson's life. He contends that the DADM script is totally different from the book, the scenes are all fiction whereas the book purports to be fact.
7. Mr Isaac offered to have the Writers Guild give an independent verdict on the matter. On 30th October 2009 District Judge Bullock made an order referring the dispute to the Writers Guild to arbitrate the issue of copyright, with the case to be relisted in 16 weeks and in the meantime the defendants' script was not to be sold or used for film or TV production. The Writer's Guild indicated that they were not equipped to conduct that sort of exercise and so on 27th January 2010 District Judge Pescod allocated the case to the multi-track and gave directions for a CMC in April. The case was stayed for 56 days a mediation to take place, but to no avail. On 2nd August 2010 the case was transferred to the High Court, Chancery Division to be listed before a specialist copyright judge.
8. At some stage while the case was still in Newcastle the claimants amended the Particulars of Claim to deal with the other script Mr Isaac referred to in his defence. This was a script or screenplay produced by a film company called Shakabuku Films in 2001 pursuant to a licence agreement which the claimants had entered into with the film company. The claimants plead that the Shakabuku script was based on the book and that the licence to Shakabuku lapsed in 2006. The Amended Particulars of Claim also pleads that Mr Isaac's script reproduces "substantial incidents and dialogue from the Shakabuku screenplay" (paragraph 11).
9. A point arises as to the precise status of the Shakabuku script in this case. In addition to dealing with the claim for copyright infringement relating to the book, the claimants' skeleton argument for trial contends that the claimants' own copyright in the Shakabuku script and that it has been infringed too. Mr Isaac was surprised by this at trial. In my judgment the confusion has arisen as follows. The Amended Particulars of Claim which raised the Shakabuku script have been drafted with care. The Shakabuku script is pleaded as an adaptation of the book (the "Work" in the pleading) and similarities between the Shakabuku script and the DADM script are relied on. However the Amended Particulars of Claim remains, as the Particulars of Claim before, as a claim for infringement of copyright in the book alone. The Amended Particulars of Claim does not claim that the claimants' own the copyright in the Shakabuku screenplay itself and does not claim that that copyright has been infringed. Similarities between the Shakabuku script and the DADM script are put forward (see paragraph 12) as evidence that the DADM script is an adaptation of "the Work" (i.e. the book) and paragraph 13 pleads that the defendants have infringed copyright in "the Work". The prayer for relief refers only to copyright in the Work. Thus in this case the similarities between the Shakabuku script and the DADM script are relied on and fall to be considered in this case. However, despite the claimants' skeleton, in my judgment the claimants have made no claim to ownership of copyright in the Shakabuku script itself and no claim that that copyright (as opposed to the copyright in the book) has been infringed.
10. When the case was transferred to the High Court in London, the next step was for the defendant to file an Amended Defence in response to the Amended Particulars of Claim. This apparently led to difficulties because on 7th January 2011 Master Price made an unless order requiring the defendants' defence by 28th January 2011.
11. In any event on 1st February 2011 Master Price directed that the case be transferred to the Patents County Court with directions for standard disclosure and witness statements.
12. A CMC was held in the Patents County Court on 20th July 2011. By this time the dates for disclosure and witness statements had passed but nothing had been served. At that hearing I reviewed the issues with the parties and made a fresh set of directions in accordance with the procedures applicable in the Patents County Court since 1st October 2010. There was no need for disclosure and no order was made. The directions recited that the central issue to be determined was infringement and there was no live issue as to title or subsistence. Witness statements were to be served directed to the issue of infringement and cross-examination was limited to that issue.
13. The case came on for trial on 15th November 2011. Regrettably the claimants' bundle did not arrive with me until the morning of the trial and so I could not pre-read the book or the script. With a short adjournment to allow me to review the materials at speed, the trial was concluded within the allotted time.
14. Mr Marwick instructed by Endeavour Partnership appeared for the claimants. Mr Isaac represented himself and his company, the second defendant.
15. I heard evidence from Mr Hodgson, Mr Jarvie and Mr Isaac. I will deal with their testimony in context.

The Law

16. Copyright subsists in an original literary work (s1(1)(a) Copyright Designs and Patents Act 1988) and see s3(1) of the 1988 Act for a definition of "literary work".
17. Script or screenplays are dramatic works within the 1988 Act although the 1988 Act does not define "dramatic work" as such but simply states that it will include a work of dance or mime (s3(1)).
18. By Section 21(1) of the 1988 Act, the making of an adaptation of the work is an act restricted by copyright in a literary work and for this purpose an adaptation is made when it is recorded in writing or otherwise. An "adaptation" means (so far as is relevant and in relation to a literary work) a version of a non-dramatic work in which it is converted into a dramatic work (s12(3) of the 1988 Act). The doing of any acts specified in sections 17-20 of the 1988 Act in relation to an adaptation of a work is also an act restricted by copyright. So copying (s17) and issuing copies to the public (s18) of an adaptation are acts restricted by copyright.
19. By s16(3) of the 1988 Act, the references in the sections above to the doing of an act restricted by copyright in a work are to the doing of it in relation to the work as a whole or any substantial part of it and doing it either directly or indirectly.
20. Thus, in summary, if the DADM script (a dramatic work) is a version of the whole or any substantial part of Flipper's Side (a literary work) then the DADM script is an adaptation of Flipper's Side and reproducing the DADM script would be an act restricted by copyright.
21. There is an unclear dividing line between what amounts to reproduction of a work (restricted by s17 of the 1988 Act) and what amounts to an adaptation of a work (restricted by s21). The claimant's put their case on the basis of adaptation although the Amended Particulars of Claim also uses the word reproduction in places. In my judgment on the facts of this case there is no relevant difference. Adaptation is a more apt description of what is alleged to have taken place here rather than simply reproduction given that the allegation is that a book has been turned into a film script or screenplay.
22. Mr Marwick referred to the checklist provided by Rix LJ at paragraph 124 in Baigent & Leigh v Random House [2007] EWCA 247 (the Da Vinci Code case). There the learned judge said:

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?

23. The DADM script is obviously not an adaptation of the whole of Flipper's Side on any view. It is alleged to be an adaptation of a substantial part of the work. In Designers Guild v Russell Williams [2000] WLR 2416 Lord Hoffmann said the following, which has a bearing on the issue of what a "substantial part" is:

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. [1979] 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. [1964] 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.

24. Also in the Designer's Guild case, Lord Millet said the following:

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. [1964] 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.

25. Mr Marwick did not cite the judgment of the European Court of Justice in the Infopaq case, C-5/08 [2010] FSR 495 but it seems to me that it is relevant to the question of what is a substantial part. In that case the Court of Justice, in answering the first question, held that carrying out the relevant acts in relation to an extract of a protected work infringed "if the elements thus reproduced are the expression of the intellectual creation of their author", it being for the national court to make that determination. In The Newspaper Licensing Agency v Meltwater [2011] EWCA Civ 890 the Court of Appeal considered the Infopaq decision. The issue there was whether it had changed the test for originality and the Court of Appeal held that it had not (see paragraph 20 of the judgment of The Chancellor Sir Andrew Morritt). In relation to "substantial part" the judge at first instance (Proudman J) had applied the Infopaq test to the question of infringement and was upheld in the Court of Appeal. I will take Infopaq into account when dealing with the issue of substantial part.

The facts

26. The basic facts are not in dispute. In 2000 Flipper's Side was complete and was published. At around that time Mr Hodgson and Mr Jarvie worked with Shakabuku Films to produce a script. It was produced in about 2001. It is based on Flipper's Side but it is by no means an identical story. For example in the Shakabuku script the character Paul is reconciled with his father. Mr Jarvie says the Shakabuku script was to be called Down Among the Dead Men.
27. In 2005 Mr Hodgson and Mr Jarvie met Mr Isaac. Mr Isaac was friendly with people at Shakabuku and offered to help. In about 2006 the relationship with Shakabuku was breaking down. In October 2006 Mr Hodgson, Mr Jarvie and Mr Isaac met and agreed to set up Down Among the Dead Men Productions Ltd as a vehicle to handle the film project. Mr Isaac was given a copy (at least) of Flipper's Side and the Shakabuku script. In May 2007 the three men went to the Cannes Film Festival to promote the project. In 2008 Mr Isaac began writing parts of a script with oral permission from Mr Hodgson. There were differences of opinion about Mr Isaac's work. In January 2009 Mr Isaac produced the DADM script. Mr Jarvie says that Mr Hodgson suggested amendments but Mr Isaac refused to take them on board. Mr Hodgson withdrew any permission Mr Isaac had to use an adaptation of the book.
28. This dispute arose because Mr Isaac's position was (and remains) that he does not need Mr Hodgson' permission to exploit the script because it is not an adaptation of the book. Mr Isaac was saying that he was going to seek to have his DADM script made into a film without the assistance or consent of Mr Hodgson or Mr Jarvie.
29. The issue is whether the DADM script is or is not an adaptation of the book Flipper's Side. To address the issue I will start by summarising both the Work in which copyright subsists and the allegedly infringing script.

Flipper's Side

30. Chapter 1 starts by setting out a football chant which fans of Darlington FC (known as Darlo) apparently sing to the tune of the song Que Sera Sera. It refers to the rival Hartlepool United Football Club as Poolie. The chant is set out below (note that Mr Marwick accepted that the claimants did not claim to own copyright in the chant itself):

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.'

31. The chapter introduces Mr Hodgson as a big fan of Darlington FC. He has followed the club for over a quarter of a century. The chapter introduces Mr Hodgson's nickname, Flipper. It mentions that he did play football for his school, playing in goal and represented the school at disabled sporting events. The point Mr Hodgson is making here is specifically to challenge a non-disabled reader's stereotype of disabled people.
32. The chapter continues by explaining how he became disabled in the first place. When he was seven months old he was taken ill with flu like symptoms, but the family doctor reassured his mother, telling her not to worry. He suffered an epileptic fit, was taken to hospital and diagnosed with meningitis. He survived but the disease had affected his brain and spinal cord and left him physically disabled. With some movement in his legs Mr Hodgson is not wheelchair bound but has used a wheelchair since the age of four. In his early years he had a speech impediment and had great difficulty making himself understood. Mr Hodgson tells a story about a lesson when he was four years old about a clock. This involved him telling the time to his teacher, but his teacher assuming it was a lucky guess until it emerged that, to the teacher's surprise, he could in fact tell the time.
33. The chapter continues to explain Mr Hodgson's early home life, his mother Alice, his sister Alison and his parents' difficult relationship. It moves on to his move in 1972 to become a boarder at a special school for the disabled called Percy Hedley. The chapter ends by describing his first visit to Darlington FC at their ground known as Feethams and how he became hooked on football.
34. Chapter 2 deals with Mr Hodgson' time a Percy Hedley until he left in 1981. The chapter describes his poor relationship with his father, the fact that his mother had to pay his father to drive him home for the weekend in the family car and his father's love for racing pigeons. He and his father travel to an address on a council housing estate in Darlington to collect a pigeon. The estate has a poor reputation. Inside the house the staircase and gate had been chopped up and burnt on a fire, the occupants use a ladder to get upstairs and the copper water tank had been disconnected and sold to a scrap dealer.
35. The focus then shifts to Darlington FC, life at Percy Hedley as Mr Hodgson grew older and his first sexual experience. The chapters ends with Mr Hodgson leaving school.
36. In chapter 3 Mr Hodgson describes his experience of the early 1980s being unemployed. He worked (unpaid) selling merchandise for the Darlington FC supporters' club. His first experience of football violence is described. The stinginess of his father is also discussed, including a description of his father charging Mr Hodgson fifty pence to take him to football. Most of the chapter is about following the club to various matches and various incidents from Mr Hodgson's life which illustrate prejudice and assumptions made about disabled people.
37. In chapter 4 various Darlington FC away matches are described including a visit to Torquay, a visit to Exeter (including Exeter cathedral), Peterborough , Stockport, Middlesbrough, Bury and Crewe. The chapter ends with a visit to Redcar horse races.
38. Chapter 5 continues to deal with a life following Darlington FC in 1985-1987. In chapter 6, against a background of following Darlington, the book explains how Mr Hodgson decided to see the Disability Resettlement Officer and try to get a job. Incidents of disability discrimination are also described.
39. In chapter 7 Mr Hodgson describes himself and his mother leaving his father, and moving into a flat in Darlington without him. Then Mr Hodgson goes to college to study Business Studies. Darlington FC have to play a crucial match at Scunthorpe United, a match they needed to win to avoid relegation to the Vauxhall Conference league. They lose 5-1. The chapter ends when he leaves college.
40. Chapter 8 recounts more stories of following the football club (now in 1989). The chapter ends with a reference to one of Mr Hodgson's friends Ian, who has been with him for much of the story up to now, sharing a double bed with another friend Brian.
41. In chapter 9 the focus changes to Mr Hodgson's efforts to get a job. It describes three particular incidents which stand out in relation to discrimination. The first involves a striking incident in which Mr Hodgson is invited to an interview but when he arrives the personnel officer has not realised he is in a wheelchair, even though it is mentioned on his application form, and cannot offer him the job because the office is up a flight of stairs. The personnel officer had not read his form properly. The second arises after Mr Hodgson has started to campaign about the discrimination he has experienced. He went to an interview for a job with the County Council, having checked in advance that there would be wheelchair access. When he and his friend Peter arrive they are confronted by a huge curving marble staircase. When he complained the reply was that the staff had not thought about his getting up the stairs, and only considered access into the building. The third incident was one in which a less well qualified person he knew got a job he applied for, presumably as a result of discrimination.
42. Mr Hodgson did eventually get a part-time job and the chapter ends with some incidents at that workplace including a senior member of staff whose wig blew off, a prank flicking paper clips with an elastic band and a trick played on a new trainee member of staff. The new trainee was told he had to take Mr Hodgson to the toilet and that Mr Hodgson has had a curry the night before. As a result he had to wear a boiler suit, green wellington boots, a face mask, goggles and elbow length rubber gloves. It was another prank.
43. The focus of chapter 10 turns back to supporting Darlington FC, now into 1990/91. One incident mentioned is that Ian and Mr Hodgson took part in a sponsored wheelchair push from Scorton Hospital in North Yorkshire to Victoria Park, Hartlepool. Heather, Mr Hodgson's future fiancée, made the refreshments and the walk raised £2,000 for charity.
44. Chapter 11 is not concerned with football. In 1992 Mr Hodgson's mother Alison suffers a massive stroke, survives but starts to display signs of Alzheimer's dementia. This has a powerful impact on Mr Hodgson and in 1994 he attempts to commit suicide. He refuses treatment but his sister Alison persuades him to accept it. Later that year Mr Hodgson's mother dies. The funeral is described which highlights the difficult relationship Mr Hodgson's stepsisters have with him. He is not allowed in the family car to the funeral.
45. In chapter 12 Mr Hodgson has his own home carer for the first time, now that his mother has died. The chapter describes incidents which highlight the difficulties in the Community Care system as well as the attitude of able bodied people to the disabled, particularly involving attitudes to sex.
46. Chapter 13 describes Mr Hodgson's relationship with Jane, a married woman. The relationship is stormy and the chapter ends describing another suicide attempt by Mr Hodgson. This is still in the period a few months after the death of his mother.
47. Chapter 14 describes another wheelchair push, this time to Hartlepool, from Catterick Garrison in the rain. The football match at the end was a secondary consideration, with a 1-1 score draw. Chapter 15 is a short chapter containing Mr Hodgson's reflections on his relationship with Jane.
48. Chapter 16 relates to Darlington FC's historic trip to Wembley. It is the Third Division play off final against Plymouth Argyle. Darlington lose 1-0.
49. Chapter 17 describes the end of Mr Hodgson's relationship with Jane. In the final chapter (18), more football matches are mentioned and Mr Hodgson's engagement to Heather in 1998. They did not get married. The story ends in 1999 with Mr Hodgson taking advantage of modern computer communication technology and reflecting on the death of his mother fives years before.

Down Among the Dead Men

50. DADM is the life story of a disabled person in a wheelchair (Paul) who is an avid football fan. His team is Darlington FC. The story consists of episodes from his life.
51. DADM is a script or screenplay and not a book. As such it is written consisting of a series of scenes. As one might expect each scene starts with a statement of its location (such as scene 1: "Ext. football terraces - Day"). As well as obviously indicating that the scene is set on football terraces, these directions indicate that the scene is "external" and in daytime. There is then a description of the action (such as in scene 1 "Football programmes are being thrown to the floor in disgust by fans as they exit terraces. We see there (sic) feet depart, but no faces"). Then the screenplay sets out the sound, which is usually dialogue but may be a "voice over".
52. The DADM script has 127 scenes but on many occasions the scenes can be grouped together because they relate to one another. So for example the scenes running from scene 106 to the final scene 127 represent a more or less continuous episode concluding the story. The script can be conveniently summarised by reference to these episodes as follows. The numbering of the episodes is mine.

(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

53. The two stories are by no means identical but they are plainly similar and if the book had been a work of fiction, there would be no doubt that the earlier work had contributed significantly to the latter. However Mr Isaac maintains that he never read the book and that the similarities derive from conversations he had with Mr Hodgson about his life. In order to address this it is necessary to consider the evidence as a whole.

The evidence of the witnesses

54. In the witness box Mr Hodgson was cross-examined by Mr Isaac. It became clear from the outset that Mr Hodgson did not accept Mr Isaac's account of how he had dealt with Mr Hodgson. For example Mr Isaac said he had originally selected the name Annie for the mother character but had changed it to Alice because Mr Hodgson asked him to. Mr Hodgson denied that and said that Mr Isaac had sent him some extracts from the draft script which named the mother as Alice and some which named her Annie. When it became clear to Mr Isaac that Mr Hodgson was not going to agree with him, Mr Isaac stopped cross-examining Mr Hodgson.
55. Mr Jarvie was also cross-examined by Mr Isaac. This related largely to Mr Jarvie's motives. According to Mr Jarvie. Mr Isaac was given a pack of materials at the outset including Flipper's side, another text based on Flipper's Side called "When push comes to shove" and a third, a revised manuscript of Flipper's Side called "In a league of my own". Mr Isaac put to Mr Jarvie that he (Mr Jarvie) wanted Mr Isaac to adapt "When push comes to shove" in preference to Flipper's Side because Mr Jarvie had a writer's credit on the former but not the latter. Mr Jarvie accepted that that was true. Mr Jarvie was also cross-examined about the position of Shakabuku. Mr Isaac had, I think, been brought in before the relationship between Mr Hodgson and Mr Jarvie on the one hand and Shakabuku on the other had broken down although it did subsequently break down. There was a disagreement between Mr Isaac and Mr Jarvie about how and why the Shakabuku relationship broke down but in my judgment nothing turns on that. It may have related to funding from Northern Films.
56. When Mr Isaac was cross-examined Mr Marwick put a letter of February 2007 to him. In this letter Mr Isaac was writing to John Sotnik of Darlington Football Club. The letter starts by referring to his, Mr Hodgson's and Mr Jarvie's "intentions to re-write the script of his book and forward the project as a screenplay for feature presentations" and continues by stating "I am going to write a draft of the outline of the film myself as now close to the story and both writers, who have been adding content and writing scenes to be developed". Mr Isaac accepted that the letter was sent but denied it was an accurate statement of what he was going to do or did do.
57. A further point arises on the letter. In his witness statement for the trial, Mr Isaac said he was contacted by Mr Hodgson in 2008 but the letter shows that the contact was earlier. Insofar as it matters, I have accepted Mr Hodgson and Mr Jarvie's evidence on the sequence of events.
58. Mr Isaac also accepted that he had a copy of Flipper's Side but maintained he had not read it until this dispute arose.
59. Mr Marwick put to Mr Isaac the point that both the book and the DADM script start with the same football chant, indicating that this must have come from Flipper's Side. Mr Isaac denied this. He said he had attended a football match with Mr Hodgson, the fans had chanted that particular song as well as some other chants too. Mr Isaac decided to write it down. He said it was just a coincidence that he had chosen to start his script with the same chant as Flipper's Side. He also said Mr Hodgson told him the chant was in his book. Mr Isaac was asked why he had not produced his notebook and explained he had not kept it.
60. Mr Marwick then put to Mr Isaac a passage in a witness statement Mr Isaac had signed in September 2009. In that document paragraph 10 stated that the chant had been explained to him by Ron Greener (of Darlington FC) who he got to know as a result of trips to Darlington FC.
61. I did not find Mr Isaac's oral testimony explaining how this similarity came about to be credible. Moreover the explanation recounted in the witness box was not the same as the explanation given in Mr Isaac's September 2009 witness statement. The chant at the start of Flipper's Side is a striking and dramatic beginning which sets the scene neatly for the rest of the book. It does the same thing in the DADM script and in my judgment the only credible explanation for this is that Mr Isaac obtained the chant and the idea of using it in this way from Flipper's Side. It may be noted that this similariy is nothing to do with the Shakabuku script.
62. In the witness box Mr Isaac said that he would not have used Flipper's Side because using such materials was not the way he writes a script. Mr Isaac said he seeks to write in a way which is true to himself as a writer, in other words he seeks to use his own words and not to copy others. In the same vein Mr Isaac's September 2009 witness statement stated of the DADM script that "the work is all mine".
63. However on any view these statements are contradicted by scene 3 of the DADM script which consists of about a page and a half of text, almost but not exactly, word for word identical to the same scene in the Shakabuku script. They are not Mr Isaac's own words. When it was put in cross-examination Mr Isaac said he had a verbal agreement to use the Shakabuku script. That is almost certainly right in the sense that Mr Isaac had, but no longer has, Mr Hodgson's permission to adapt the materials. The significant point at this stage however is that it shows Mr Isaac was wrong to say that "all the work is mine". There was no reason for him not to copy a part of the Shakabuku script since he had permission to do so. By the same token in my judgment there was no reason why he should not have used Flipper's Side itself at the time since he was working with Mr Hodgson's permission.
64. Another example of clear copying from the Shakabuku script is the story of the episode in which Paul plays in goal for his school. This episode derives ultimately from the book but in the Shakbuku script it has been dramatised. Paul is in goal, his team is losing 27-0 and he saves a penalty when the penalty taker kicks the ball, Paul stretches for it, misses but the ball hits his face, bounces off the post and out of the goal. The scene in the DADM script is the same (including the 27-0 score) albeit the ball hits Paul's head rather than his face. This is another part of the DADM script which is plainly based closely on the Shakabuku script. When it was put to him, Mr Isaac said that it was written from a memory of the Shakabuku script read some seven years earlier. (Seven years is what I recollect Mr Isaac said in the witness box although the chronology does not give him seven years on any view, the period is three or four years). In any event I found this answer to be inherently implausible given the length of time (three or four years) and the points of detail apparently recalled (e.g. the 27-0 score and the deflection to the goalpost). Moreover (see above) the DADM script contains at scene 3 a portion which is more or less verbatim from the Shakabuku script. That portion plainly was not the product of an unaided memory. Thus Mr Isaac plainly had and used the Shakabuku script as a documentary source contemporaneously with his writing of the DADM script.
65. The Amended Particulars of Claim pleaded a schedule of similarities between the DADM script and the book and Mr Marwick took Mr Isaac through these in cross-examination. Mr Isaac maintained that they arose as a result of conversations with Mr Hodgson and did not derive from Flipper's Side. However the similarities are not simply conceptual in nature, they include numerous matters of detail such as Mr Hodgson's father charging 50p for a lift in his car (albeit one is to a football match and the other is to school), the detailed narrative of the telling the time scene at school, the missing staircase and burning wood episode at the council estate, the large staircase at the council juxtaposed with Mr Hodgson's experience of discrimination, his friends Ian and Brian sharing a bed, and the colourful episodes at the workplace with an man with a wig, flicking staples and the prank played on a trainee involving rubber gloves, overalls and toilet humour.
66. Another example is the phrase used by the job interviewer who had not realised Mr Hodgson was disabled. As with many examples in this case, many of the details of the scene have been changed, so that in the book the interviewer is a personnel officer at a supermarket whereas in DADM the interviewer is a receptionist in an accounting firm. However in the book the person says "Oh dear, you're in a wheelchair!" while in the script the person says "But you are in a wheelchair". Although it is only a very short phrase, these words capture the essence of the point of the scene in an economical way and sum it up. Paul's response in the DADM script is quite different from his response in the book but that does not matter. The phrase is a neat expression of the point being made.
67. In his closing submissions, Mr Isaac stated that only 10-15% of the script could be said to consist of paraphrases gleaned from the book. He did not mean that he accepted he had copied, he maintained that the similarities arose from what Mr Hodgson told him. His point was to emphasise how little of the DADM script was similar to the stories in the book.
68. It is true that there is much in the DADM script which is wholly independent of Flipper's Side. Save for the specific matters mentioned already - which account for a tiny amount of text in terms of volume, in terms of text the works are quite different. Also there are episodes in the DADM script which do not derive from Flipper's Side on any view such as: the reconciliation with Norman, Mr Hodgson's father; the scenes with Mad Tony (a character Mr Isaac invented); the cheap watch episode; and Paul's arrest. The final episode in which Paul and Ian walk to Scunthorpe is pure invention (save of course for the fact that Mr Hodgson has engaged in a number of sponsored wheelchair pushes described in Flipper's Side).
69. In my judgment Mr Isaac's 10-15% submission is not right. When the book and the DADM script are each considered as a whole, the DADM script is in fact very closely related to the book in terms of its plot, characters and the striking incidents and events which take place. The text is almost entirely different but nine episodes in the DADM script revolve around striking events present in Flipper's Side (No.s (i), (ii), (iii), (iv), (vii), (viii), (xi), (xiv) and (xvi)) and five more include notable events from Flipper's Side as important parts of the episode (No.s (v), (xii), (xviii), (xix) and (xxiii)). In as much as it is possible or meaningful to quantify such things, in my judgment roughly half of the dramatic incidents in the DADM script derive from Flipper's Side.
70. I have considered the testimony of Mr Isaac and Mr Hodgson carefully and the various other pieces of evidence available. I reject Mr Isaac's testimony that he did not read Flipper's Side. I did not find him to be a credible witness in this respect. He had access to Flipper's Side and the use and location of the Darlington FC chant seems to me to show that Mr Isaac used Flipper's Side as a source. Moreover the similarities in terms of detail are too close to be explicable any other way. It seems to me that the letter of February 2007 is written the way it is because that is what the Mr Isaac was going to do (rewrite the script of Mr Hodgson's book) and that is what Mr Isaac did do. Given that Mr Isaac clearly did copy part of the Shakabuku script – because he had permission to do so at the time – there is no reason why he would not have felt free to base his work on Flipper's Side itself. Mr Isaac's has produced none of the copious notes which he must have taken which would have supported his version of events.
71. I accept Mr Hodgson's testimony that he did not have the conversations with Mr Isaac that Mr Isaac contends for. I have no reason to doubt Mr Hodgson's credibility. I was less impressed with Mr Jarvie as a witness, he clearly bears some personal animosity towards Mr Isaac but, on the issues which matter, Mr Jarvie's testimony is not relevant.
72. It might have been possible to say that the similarities between the DADM script and Flipper's Side all derived via the Shakabuku script (although the claimants did not put their case that way very clearly) in which case one might have been able to accept that Mr Isaac had never actually read Flipper's Side itself. That would make no difference to the outcome since the 1988 Act is defined in such a way that adaptation and reproduction may be direct or indirect. However it does not explain the football chant. That must have come from Flipper's Side and it seems to me that this evidence undermines Mr Isaac's assertion that he did not read the book.

Conclusion on the issue of copying

73. Overall it is more likely than not that the DADM script was copied, in part, from Flipper's Side (directly or indirectly) and I so hold. The similarities between them are, in my judgment, the result of copying. I reject the defendants' defence that the similarities derive from conversations with Mr Hodgson to any material extent.

Substantial part?

74. Just because Flipper's Side was copied, it does not follow that the DADM script is an adaptation of the work within the terms of copyright law. That depends on whether what has been taken represents a substantial part of the original work. Although so far I have been considering the matter largely from the point of view of the DADM script, to assess the "substantial part" issue I need to consider Flipper's Side. What matters is the importance of the part taken to Flipper's Side. In the end the test for substantiality is a matter of quality and not quantity. A substantial part must be one in which the elements thus reproduced are the expression of the intellectual creation of their author (Infopaq).
75. From the point of view of Flipper's Side, it is undoubtedly the case that much of the book has not found its way into the DADM script. The question is whether what is reproduced of Flipper's Side in the DADM script is a substantial part of the original work.
76. In closing Mr Isaac referred to an email he received from Mr Hodgson in May 2009 in which Mr Hodgson said "further to my email to you on 9/3/09 where I said I thought your script veered too far away from my story, I still feel this way and don't want to be involved with your project, I have given this much thought and I need to follow my heart." Mr Isaac ought to have put this to the witness but in any event his point was to submit that this email in effect admitted that the DADM script did not reproduce a substantial part of the book. However that is not what Mr Hodgson is saying. The script can still reproduce a substantial part of Flipper's Side even if, in doing so, the script as a whole has veered further from Mr Hodgson's story than Mr Hodgson would like.
77. The elements of Flipper's Side which are reproduced in the DADM script are the main characters, many of the settings and contexts in which the events take place and a good number of the incidents themselves. In quantitative terms what has been reproduced is not the majority of the dramatic events or incidents from the book. There is much more in the book than in the script. That is to a considerable extent due to the different nature of the works. It seems to me that it is in the nature of film scripts that they will often have fewer incidents in them that a book and part of the skill of the script writer will be in distilling down the essence of a story presented in a book to make a suitable film. I do not doubt that the DADM script is the product of considerable skill of that kind on the part of Mr Isaac.
78. The issue in Infopaq terms is whether the elements taken from Flipper's Side are the expression of the intellectual creation of their author? This must be a qualitative test under the Infopaq approach just as it was before Infopaq.
79. In Ravenscroft v Herbert [1980] RPC 193 (not cited by either party) Brightman J had to consider a case of copyright infringement in relation to a literary work which was not a work of fiction (a work which purported to be a history of an artefact called the Spear of Destiny). He accepted the submission of counsel (Mr Laddie QC as he then was) that an author has no copyright in his facts nor in his ideas, but only in his original expression of such facts or ideas (p203 ln37-38). Another submission along the same lines was that an author of a historical work "cannot claim a monopoly in historical facts." (p205 line 20) Brightman J was "inclined to accept that a historical work is not to be judged by precisely the same standards as a work of fiction" (p205 ln43) and that an author of a historical work must have attributed to him an intention that the information thereby imparted may be used by the reader, because knowledge would become sterile if it could not be applied (p206 line 1-3). His conclusion however was that an author is not entitled, under the guise of producing an original work, to reproduce the arguments and illustrations of another author so as to appropriate for himself the literary labours of that author.
80. If all that had been derived from Flipper's Side was the idea of telling the story of the life of a disabled person who followed a football team, then there would be no question about the matter. This would not be a substantial part of Flipper's Side. However that is not a fair characterisation of what has happened. In addition to the use of the main characters and many of the settings and contexts, the DADM script uses specific and striking incidents from Flipper's Side and uses striking details of those incidents presented in the book. It also employs the same interpretation of those events as appears in Flipper's Side. For example the telling the time episode, the imposing council staircase and the interviewer's surprise at Paul being in a wheelchair are presented in Flipper's Side as illustrations of the difficulties disabled persons face in the able bodied world. Placing an interpretation of such events from one's own life and using them to tell one's own story is a key part of the intellectual effort of the author of an autobiography. Other examples are: having to pay 50p for a car journey which illustrates the meanness of his father; playing in goal for his school team which illustrates that disabled people are not necessarily as disabled as one might assume; the sexual experiences, which are all different in details but which are presented in Flipper's Side again to undermine the assumptions society may make about the disabled; and the prank played on a new employee, which again serve to illustrate the normality of Mr Hodgson's life despite his disability.
81. It seems to me that Flipper's Side has not merely been used as one source or as a work of reference by Mr Isaac. Having read Flipper's Side and the script, as I have, the elements reproduced are not merely a generic story about a disabled football fan but are recognisable as part of the particular story told in Flipper's Side. The details and incidents which are reproduced and their interpretation are a key part of what makes Flipper's Side itself an original work.
82. In my judgment all these elements together do amount to a substantial part of Flipper's Side. Their presence in Flipper's Side is the result of the intellectual effort of the author in having them set down and told his story. The fact that they are presented as factual rather than fictional does not seem to me to make a difference, at least in this case. The work of producing an autobiography is an intellectual effort of creation of its own.
83. Mr Isaac has maintained all along that all he wanted was for an independent person to read the book and the script. It is regrettable that the legal process took two years for that to take place. However I have now done so. In my judgment the DADM script reproduces a substantial part of Flipper's Side. I will give judgment for the claimants.