Hungry for a copyright battle over Easter

My Easter weekend with family and friends saw hunger not only for chocolate eggs, but for critique of the novel “The Hunger Games” (by Suzanne Collins)1. A flurry of enthusiasm for this book/film inspired a verbal battle on the similarities between it and the book/film “Battle Royale” (novel by Koushun Takami). Both tell a story of children fighting each other to death until only one remains alive. On returning to my office, I was therefore very interested to read a report in last week’s Law Society Gazette on two recent copyright cases relating to similar stories and characters.

Mitchell v BBC2

This case involved copyright in artistic works comprising cartoon characters. The BBC produced a cartoon with characters similar to those designed previously by Mr. Mitchell, and Mr. Mitchell took action for copyright infringement. He did not succeed with his claim. One element that needs to be shown in copyright cases is some element of copying, i.e. if the BBC came up with its characters independently and without any reference to Mr. Mitchell’s work, this is not copyright infringement. The BBC designers were not actively aware of Mr. Mitchell’s work at the time they created their characters and there was found to be no inference of “subconscious copying”. As part of the reason for his decision, the judge noted that the similarities were at a “high level of generality” and that as the artists worked in the same field of children’s character design they would have been “influenced by many of the same common elements”.

Hodgson v Isaac3

This case involves the adaptation of a book to a film (the book being Mr. Hodgson’s autobiography). The development of the film script by Mr. Isaac started with the permission of Mr. Hodgson, but then, due to differences in opinion, the permission was withdrawn. Mr. Isaac continued to make the film. Mr. Hodgson took action for copyright infringement. The question was then whether the resulting film script was “copied” from the book, or whether it was an original work, put together from other source material (such as Mr. Isaac’s conversations with Mr. Hodgson). The copyright claim succeeded. The judge considered that it was more likely than not that the similarities between the film script and the autobiography were the result of copying, and that the elements reproduced were not merely a generic story about a character similar to the claimant. “The details and incidents which are reproduced and their interpretation are a key part of what makes [the book] itself an original work.

The judge also commented: “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 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”.

What does this tell us?

Having the same general or generic idea of a story in itself is unlikely to be enough to show copyright infringement. However, if there is more specific copying, e.g. of specific scenes or incidents, or specific characters and their actions, then there may be more of a case - it is not always necessary to have copied the actual text. If books/films are just influenced by similar outside elements, this is not copying so would not constitute copyright infringement.

Now, back to our Easter debate on Battle Royale v The Hunger Games: I am hoping this article assists with the inevitable family birthday debate this coming weekend.

Olivia Whitcroft, principal of OBEP, 10 April 2012

1 and a squabble between GR and OF over the right to read the only copy of the book in the house

2 Mitchell v British Broadcasting Corporation (BBC) [2011] EWPCC 42 (21 December 2011)

3 Hodgson & Anor v Isaac & Anor [2010] EWPCC 37 (05 December 2011)

This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details