THIS WEEK IN CULTURE + THE CULTURE BUSINESS
News Briefing: Shambles copyright case
Last week comedian Harry Deansway was in the High Court in London in a legal dispute with Steve Coogan’s Baby Cow Productions.
He accuses the production company of ripping off his YouTube series ‘Shambles’ when it made Dave TV series ‘Live At The Moth Club’. Both shows were set in comedy clubs, combining stand-up routines with scenes depicting fictional goings on off stage.
In this week’s TW News Briefing we run through arguments presented by both sides in the litigation, and explain how copyright law deals with disputes of this kind.
THE LAWSUIT
Harry Deansway, real name Joshua Rinkoff, sued Baby Cow Productions last year. He claims that ‘Live At The Moth Club’, which aired on Dave in 2022, copies ‘Shambles’, the YouTube series he created in 2013.
Specifically, Deansway claims that Baby Cow’s Head Of Comedy Development Rupert Majendie stole the concept of ‘Shambles’ when creating the newer show.
In his lawsuit, Deansway says that he pitched an earlier version of his idea to Majendie when the executive was working for the BBC, and that Majendie liked the concept enough “to put it forward to his boss”.
Legally speaking, Deansway accuses Majendie and Baby Cow of infringing the copyright in the dramatic work that is ‘Shambles’.
Steve Coogan himself isn’t involved in the dispute, except in his role as a shareholder and director of Baby Cow.
Back when he filed his lawsuit, Deansway said, “I’m a big fan of Steve Coogan, but I can’t help wondering how he would have felt if someone had copied one of his early characters when he was just starting out and then tried to allege that this was perfectly legal”.
Baby Cow denies that ‘Live At The Moth Club’ rips off ‘Shambles’, with Majendie insisting he was not aware of Deansway’s series when he began work on his programme, and that any similarities between the two series is coincidental.
Back in 2022 in a Q&A with British Comedy Guide, Majendie discussed where the idea for ‘Live At The Moth Club’ came from.
He said, “It began as a real club night I was involved in running at the Moth Club in Hackney which has a real party energy”.
“What we wanted for that night”, he went on, “was to have an ensemble, so comedy talent including Jamie Demetriou, Natasia Demetriou, Ellie White and Cardinal Burns all became residents, plus we had like-minded people come and go every month”.
“Bringing that to TV screens to showcase alternative comedy while capturing the fizz of a live club night is something I’ve always wanted to do and I’m proud of the team that helped to achieve it”.
SOME COPYRIGHT LAW
Copyright gives creative people control over the outputs of their creativity and provides that protection to all kinds of creative works, including literature, scripts, compositions, illustrations, photographs, films, recordings and TV programmes.
As a copyright owner you have control over the reproduction, distribution, rental, performance, communication, making available and adaption of your work.
If a third party wants to be make use of a copyright protected work they must get permission from the copyright owner.
If they don’t, that is copyright infringement. And the law says the copyright owner should sue the infringer for damages – usually whatever they think they lost because of the infringement or what the infringer gained.
Most copyright infringement lawsuits involve a third party simply copying, distributing, performing, communicating or making available a copyright protected work in its original form without getting the required permission.
However, you also get cases where one creative accuses another creative of infringing their rights by illegally adapting their work.
So the alleged infringer took an earlier story or script or song or artwork, and they adapted it to create a new story or script or song or artwork without getting the copyright owner’s permission.
In these cases, the copyright owner needs to demonstrate two things.
First, that the alleged infringer had access to their work before creating the new work. The infringement doesn’t have to be deliberate – it can be subconscious – but you need to demonstrate how the infringer was exposed to the earlier work.
That’s why Deansway’s claim that he pitched the idea that became ‘Shambles’ to Majendie is important. His lawsuit also claims that Adam Hess, who appeared in ‘Shambles’, was involved in writing the pilot of ‘Live At The Moth Club’.
Second, you need to show that the new work and the earlier work are sufficiently similar to constitute copyright infringement.
It’s important to remember that copyright doesn’t protect facts and ideas, it protects the expression of facts and ideas. It’s not enough for two works to be based on the same basic idea, the new work needs to copy the way the idea was expressed in the earlier work.
Where the new work and the old work are not exactly the same but have some elements in common, you also need to confirm that those elements are protected by copyright in isolation.
This comes up a lot in music cases, where a new song is similar to an old song. The two songs may simply be built using the same musical building blocks and those musical segments in isolation may not be protected by copyright.
For any one segment to enjoy copyright protection, it must show originality of expression. Short musical segments may not have enough substance to meet that requirement.
In his lawsuit, Deansway says that the format of ‘Shambles’ is “an original dramatic work protected by copyright under the Copyright Designs And Patents Act 1988. It also consists of several clearly identifiable features, which, taken together, distinguish it from other shows of a similar type”.
Deansway’s legal case also emphasises how the plot lines of two specific episodes – ‘High Spirits’ in ‘Shambles’ and ‘Don’t Go In There’ in ‘Live At The Moth Club’ – both centre on the false belief that the comedy club where each programme is set is haunted. The scripts not not identical, but, says Deansway, they are “clearly based on the same premise”.
THE HIGH COURT HEARING
Both sides last week set out their arguments at the High Court in London.
According to Variety, Deansway told the court that Majendie would have been aware of ‘Shambles’ because it was promoted on social media by a number of prominent comedians who move in similar circles to the Baby Cow exec.
He also again pointed out that he had pitched an earlier version of his idea directly to Majendie and that Adam Hess worked on both programmes.
Majendie told the court that he didn’t know about ‘Shambles’ when he began developing ‘Live At The Moth Club’ and insisted that any similarities between the two programmes were a coincidence.
He added that he trusted Hess and was therefore convinced that he hadn’t ripped off elements of ‘Shambles’ when working on the pilot of ‘Live At The Moth Club’.
Baby Cow also got three comedians who worked on their show – Ellie White, Alexander Owen and Ben Ashenden – to confirm they had not been aware of ‘Shambles’ when working on the new show.
According to Law360, Jonathan Hill, a lawyer working for Baby Cow, also honed in on the ways the two programmes differed in a written submission to the court.
He also said that Deansway’s description of the defining features of ‘Shambles’ was inaccurate and, therefore, “the ‘format’ relied upon does not exist and, as such, cannot be the subject of any copyright”.
Having listened to all the arguments, Recorder Amanda Michaels will issue a judgement in writing at a later date.
FURTHER RESOURCES
TW Culture now offers a training course on copyright for creative businesses which can be delivered in-house for your team – either online or in-person. A two hour and half-day version is available. Click here for more information.