THIS WEEK IN CULTURE + THE CULTURE BUSINESS
News Briefing: Shambles copyright judgement
A judge has ruled against comedian Harry Deansway in his copyright dispute with Steve Coogan’s Baby Cow Productions.
He accused the production company of copyright infringement, claiming that its Dave TV show ‘Live At The Moth Club’ ripped off his YouTube series ‘Shambles’.
In this TW News Briefing, we explain how Deansway’s legal claim depended on demonstrating that the format to ‘Shambles’ constituted a ‘dramatic work’ in copyright terms, and why the judge decided that wasn’t the case.
LITIGATION RECAP
As outlined in this previous briefing, Harry Deansway, real name Joshua Rinkoff, sued Baby Cow Productions in 2023. He claims that ‘Live At The Moth Club’, which aired on Dave in 2022, copies ‘Shambles’, the YouTube series he created in 2013.
Both shows were set in comedy clubs, combining stand-up routines with scenes depicting fictional goings on off stage.
In his lawsuit, Deansway claimed that Baby Cow’s Head Of Comedy Development Rupert Majendie infringed the copyright in ‘Shambles’ when he created ‘Live At The Moth Club’.
The case got to court in November last year, with judge Amanda Michaels hearing from Deansway, Majendie and other comedians involved in the writing of Baby Cow’s programme.
In order to prevail, Deansway first needed to convince Michaels that the format of ‘Shambles’ was protected by copyright, and then that Majendie had had access to the earlier series and had copied it when developing his show.
COPYRIGHT BASICS
Copyright is legal concept that gives creators control over the output of their creativity. It provides that protection to various kinds of creative works, including literature, scripts, compositions, illustrations, photographs, films, recordings and TV programmes.
UK copyright law organises the kinds of creative work that enjoy copyright protection into eight groups: literary works, dramatic works, musical works, artistic works, sound recordings, films, broadcasts and typographical arrangements.
It’s important to understand that copyright doesn’t protect ideas, it protects the expression of ideas. In her judgement, Michaels writes “copyright protects the embodiment of an idea, not the idea itself”.
Deansway didn’t accuse Baby Cow of using or adapting the actual dialogue of ‘Shambles’ – which could be seen as a literary work – but of taking the format of the series. However, is the format, which you could see as a collection of ideas, protected by copyright?
In his lawsuit, Deansway argued that the format of ‘Shambles’ was itself protected by copyright as a dramatic work.
ARE PROGRAMME FORMATS DRAMATIC WORKS?
UK copyright law doesn’t provide a detailed definition of dramatic work, except to say that it includes a work of dance or mime.
However, the concept has been further defined in court, including in cases where it was ruled that a film’s screenplay does count as a dramatic work.
In the ‘Shambles’ dispute, both sides referenced a definition provided in one such case, that a “dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience”.
Citing another such case in her judgement, Michaels concludes that “the dramatic copyright protects the skill and effort used to create or select or, in this case perhaps, combine, the underlying concepts of the work. The concepts are not protected as such”.
This, she adds, “reflects the general principle that copyright protects only the expression of a work and does not subsist in ideas themselves”.
But can what is basically a TV programme format constitute a dramatic work?
This question has been tackled in previous cases. Michaels’ judgement cites previous copyright disputes in Australia, Canada and the UK involving, respectively, the formats of a talent show, a pop music show and a quiz show.
The quiz show case, Banner Universal Motion Pictures v Endemol Shine Group, is particularly useful. In that case judge Richard Snowden said “it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work”.
He added, this is so “even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode”.
He then set out two criteria that must be met for a TV show format to have copyright protection. First, “there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type”.
And second, “that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form”.
Actually, in that case, it was decided that the quiz show format Banner Universal was trying to protect didn’t fulfil those criteria and therefore was not protected by copyright. However, Michaels notes, Deansway’s lawyers argued that the criteria set out by Snowden were nevertheless useful in this dispute.
In her judgement, Michaels also quotes from the book Copinger And Skone James On Copyright, which discusses Snowden’s ruling, and states, “a useful test to determine whether there is a protectable dramatic work is to ask whether, using the written script or other record as a basis, it is possible to present a coherent and meaningful show which is capable of being performed”.
COPYRIGHT STATUS OF ‘SHAMBLES’ FORMAT
If we take Snowden’s criteria for how a programme format might constitute a protected dramatic work, does the format of ‘Shambles’ meet those criteria?
In his lawsuit, Deansway described the format of ‘Shambles’ by setting out eight “clearly identifiable features, which, taken together, distinguish it from other shows of a similar type”.
They included that the programme is set in a fictional comedy club based in a real world venue; that there is a mix of fictional scenes and actual stand-up comedy; there are interactions between the fictional characters and real comedians; and cinema verité techniques are employed.
Also, the protagonist is a promoter facing significant challenges putting on a successful comedy night; there is a hapless club owner character and an incompetent intern; and there is a “constant presence of a variety of industry characters working behind the scenes in the comedy industry”.
In her ruling , the judge notes that not all those features appear in every episode of ‘Shambles’. She also referenced Baby Cow’s argument that the format described in Deansway’s lawsuit was basically produced in retrospect.
According to the production company, it was “an artificial creation produced for the purposes of the proceedings, which omits aspects of the characters and events in ‘Shambles’, to be able to show similarity at a high level and lead to an inference of copying”.
But even putting aside those concerns, Michaels concluded that the eight features “taken together do not have the necessary qualities to amount to a dramatic work which could be protected as a copyright work”.
She added, “In my judgment, the eight features are not connected with each other in a coherent framework, and they do not set out a formula which can be repeatedly applied so as to enable the show to be reproduced in recognisable form”.
Instead, “the pleaded features set out general ideas at a fairly high level of abstraction and in my judgment are inadequate to enable anyone to create, perform or reproduce an episode of ‘Shambles'”.
“It is equally plain”, she went on, “that the pleaded features of ‘Shambles’ are not organised into a unified work which could be performed which, as Snowden said, is the essence of a dramatic work”.
To that end she concluded, “I find that the format of Shambles is not a work which is capable of being protected by copyright as a dramatic work”.
DEANSWAY’S RESPONSE
Deansway responded to the judgement this weekend, writing, “I will forever be proud that I took a stand for what I truly believe was right”.
He added, “Copyright law is notoriously difficult as it is viewed through the antiquated lens of the British justice system. My legal team wanted to set a new legal precedent that would not only have helped me but others who wish to have their ideas protected. It was always going to be a difficult ask”.
He hit back at claims that he was motivated to sue Baby Cow because of a personal vendetta against Majendie, urging people to read his original lawsuit, and watch ‘Shambles’ and ‘Live At The Moth Club’ side by side.
He then concluded, “I went to court for an acknowledgement that my format was copied. Depending on how Baby Cow proceeds with recovering costs I will now explore all legal options including appeal but will no doubt be limited by my lack of finance and will face almost certain bankruptcy if the million pound company and their billion pound backers the BBC go after costs”.
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.