High Court 'Pitching In' With New Guidance On The Use Of Interim Injunctions In Copyright Infringement Case

On 11 February 2019, the High Court issued guidance on factors to take into account when considering whether an interim injunction should be granted where there has been copyright infringement.

Facts

The case concerned an application by the claimant, Happy Camper Productions Ltd, for an interim injunction to restrain the Defendant, the BBC, from broadcasting a comedy drama called "Pitching In".

The claimant company was set up by Jerry and Kay Lockett to commercially exploit the script of their comedy drama "Down the Caravan". The premise of the script was a recently deceased man in his 40s, based in West Wales, who had made a video shown at his funeral. In the video, the character announced his plans to split the caravan site he lived in between his wife and secret lover; thereby creating dramatic and comedic consequences.

The pilot script of the programme was sent by Mr Lockett to Margaret Russell, a producer at the BBC in July 2015, who almost 3 years later told him: "the script was not very good" and not worth sending to London. Months later, Mr and Mrs Lockett caught wind of a script for a BBC pilot "Pitching In", also a comedy set in Wales in a caravan park owed by a widower. The claim was brought for copyright infringement under the CDPA 1988. The interim injunction was sought to stop the broadcast of the new comedy, due to be shown by BBC One Wales the very next day after the hearing.

Decision

The High Court applied the test in American Cyanamid Co (No 1) v Ethicon Ltd [1975] namely asking:

is there a serious question to be tried; and, if so are damages an adequate remedy; and what is the balance of convenience? As for a 'serious question to be tried', HHJ Keyser doubted this on the evidence. Mainly because despite some minor similarities between the two scripts, the imaginative idea underlying the claimant's programme was very different. Keyser also thought it relevant to add that if any copyright did exist, the writer of the pilot was likely the legal owner and not the claimant.

Secondly, supposing there was a further issue to be tried, the injunction should be refused as damages were an adequate remedy. This was despite the difficulty in calculating the commercial value of the claim.

Furthermore, the balance of convenience laid much in the BBC's favour. Whilst the risk of allowing "Pitching In" its TV debut may give rise to damages in favour of the claimants, the risk of not doing so would mean the loss of money and a large loss...

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