Obisanya v Ellis & Anor

In this action the Claimant, Elizabeth Obisanya, claims that the Defendants have infringed her literary copyright in the screenplay of a full length feature romantic comedy film which she says she created between 2001 and 2003 and finalised in 2004 under the title originally of Cashback, although I think later it became Cashback Paper or Plastic.

The Claimant trades as Sword of the Spirit Film & TV Production Co, and at all material times she has also had an internet website at www.swordofthespirit.tv. As those names suggest, she is strongly motivated by religious, and indeed specifically Christian, principles, and she describes herself in a number of places as a single parent Christian woman on a low income. At all stages she has appeared in this action as a litigant in person, as she has before me today.

I can say at once that I have complete respect for the sincerity of her beliefs and I have no doubt that she has convinced herself of the rightness of the claim that she is asserting against the Defendants.

The First Defendant, Mr Sean Ellis, is a writer and maker of films who lives and works in the United Kingdom. The Second Defendant, Cashback Films Ltd, is a company which was incorporated in the United Kingdom to produce a full length feature film called Cashback, based on a short film of the same name for which Mr Ellis had created the screenplay in December 2002. It will be convenient to refer to those two films as “the feature” and “the short” respectively.

The short was produced by a company called Left Turn Productions Ltd between April and December 2003, the filming having been completed by June 2003. It was, as I understand, very successful and has won a number of awards, both in the United Kingdom and abroad. The feature has also now been completed and was first released in France in January 2007. Until very recently it had not been released in the UK, but I understand that it was finally released here in the course of last month.

The Claimant relies on a number of alleged similarities between her screenplay and the short, the feature and their respective screenplays in support of her allegations of infringement. The Defendants deny the allegations and say that they are groundless. Their case is that the screenplay of the short was completed by Mr Ellis in December 2002, well before the Claimant had created her screenplay, and they go on to say that the feature, although later in date, is itself derived from the short. In any event, the Defendants argue that the alleged similarities are, upon inspection, of no real substance and are readily explicable as the product of coincidence. The allegations of copying are all explicitly denied.

The matter comes before me on an application by the Defendants for summary judgment, the application having been issued on 29th February of this year. The application has two limbs. First of all, summary judgment is sought on the defence with the consequence, if successful, that the claim would be struck out on the footing that it discloses no reasonable prospect of success and there is no other compelling reason why the matter should be disposed of at trial, that wording reflecting CPR Part 24. Secondly, judgment is also sought on the counterclaim in which the Defendants seek a declaration of non-infringement and an injunction restraining the Claimant from making allegations which she has already made on a number of occasions to various trade bodies to the general effect that the Defendants have stolen or otherwise copied her screenplay.

I will begin with the case as it is set out in the Claimant’s own statements of case. Her claim form was issued on 12th June 2007 and the brief details of the claim given on that document say that she conceived and wrote the screenplay for Cashback Paper or Plastic between 2001 and 2003 and then learnt of the Defendant’s Cashback in 2004. She seeks, therefore, an injunction against both the short and the subsequent feature on the grounds of copyright infringement, together with a claim for damages and costs.

I should emphasise at this stage that the claim is based only on alleged breach of copyright. The detailed Particulars of Claim then set out her claim in more detail. If I may pick them up at paragraph 4, she says that she was inspired by the time she spent working as a cashier at Budgens store, Hassocks, in West Sussex in 1993 and by a subsequent trip to the United States in 1994. This experience led her to conceive and create the screenplay of Cashback Paper or Plastic between 2001 and 2003 when it was registered at the Raindance Film Academy in early July of that year.

Following that she submitted Cashback as her entry at Goldsmith’s College in September 2003 where she proceeded to take a one year masters course during which she worked on and redrafted the script and the final draft, she says, was submitted as part of an end of year portfolio in 2004. At about the same time, I think in fact in January 2004, she created a website on which details of Cashback were provided, at any rate in the form of a synopsis.

Under the heading “Particulars of Falsity” in her statement of claim she says very little, but in paragraph 30 she refers to the fact that the First Defendant, Mr Ellis, had on his list of characters a voluptuous or busty woman, whereas she also has a busty woman in her Cashback screenplay. Then in paragraph 32 she says she believes that the film work of the short and the feature were not Mr Ellis’s original work but a copy. In paragraph 37 she says in plain terms that the name Cashback and the setting in the supermarket are by themselves sufficient and substantial enough to justify the conclusion that copying must have taken place.

Perhaps not surprisingly, this statement of case prompted a request for further information and in a response dated 3rd October 2007, after the Claimant had had an opportunity to watch the short, she gave further details of the similarities upon which she relied, having first confirmed that she did indeed wish to allege that the short, and also the feature, were copied or derived from her own Cashback screenplay. The similarities upon which she relies are, firstly, the name Cashback, and she explains that her screenplay was entitled Cashback because of the fact that there are some characters involved in it called the Granville brothers who steal back the money which they have lent to one of the protagonists. So one can see there that the title Cashback is being employed in an ironic way with regard to that particular part of the story. She also refers to the common setting in a supermarket. She says that the genre of both film scripts is similar. Both, she says, are romantic comedies. She refers again to the busty woman who features in both scripts, and that completes the list of the similarities upon which she wishes to rely. She does, however, point out that at that date she had not had an opportunity to view the feature because it had not yet been released in the UK.

I should add, however, that arrangements were made in due course for the Claimant to view the feature and she did so last month. I should also say in fairness to the Defendants that that opportunity had been offered to her since September 2007, although for complicated reasons which I need not go into she did not take advantage of it until quite recently.

In their Defence the Defendants’ general case is as I have already indicated. More specifically, in paragraph 18 under the heading “Particulars of Falsity,” firstly, the chronology relied upon by the Claimant is set out, and then it is alleged that the screenplay for the short was created by Mr Ellis before completion of or publication of the Claimant’s screenplay, and it is expressly denied that either Defendant knew of or had access to the Claimant’s screenplay prior to Mr Ellis’s work on the short screenplay.

The pleading goes on to say that the filming of the short was completed prior to the first alleged showing, but I think perhaps registration would be a more apt term, of the Claimant’s screenplay. The point is also made that the feature is derived and developed from the short and was not itself copied from the Claimant’s screenplay. The allegations of theft of intellectual property are denied and it is added for good measure that the works alleged to infringe do not reproduce any or any substantial part of the Claimant’s screenplay.

In paragraph 20 the Defendants’ positive case in relation to the feature screenplay is set out. It is said that Mr Ellis wrote that screenplay in seven to ten days between February and March 2005 basing it upon his screenplay for the short. During that period of seven to ten days he wrote some ten to twelve pages each day and emailed them on a daily basis to Ms Lana Bausager of Ugly Duckling Films Ltd and Left Turn Films Ltd. Then paragraph 21 deals with the busty woman. It is accepted that a character called Busty Customer formed part of the cast of the feature, but not of the short.

That I think is all that I need to quote from the Defence itself, but further details of the Defendants’ case are to be found in the evidence, including in particular the witness statement of Mr Ellis dated 27th February 2008. He deals with the factual background in paragraphs 8 and following. He says that in December 2002 he created the screenplay for the short, although he mistakenly dated it on the front page December 2001. He then goes on to explain how he found the inspiration for this, repeating, in effect, an answer that had already been given in reply to a request for further information. He says he conceived the idea of the short while walking around Sainsbury’s supermarket late at night in or around November 2002. This reminded him of tedious jobs which he had previously held and how much of his time he had spent clockwatching as time slowly went by. The concept of time interested him and he came up with the idea of stopping time and there being a frozen moment which is, he says, a central theme of the short. He goes on to say that when he reached the checkout to pay for his shopping on the occasion in November 2002, the cashier asked him if he would like cashback and he immediately thought that that would be a good title for a film based upon the ideas which he had conceived. So that, he says, is the motivation for the setting of the short.

He goes on to say that following completion of the screenplay the short was produced by Left Turn Productions Ltd between April and November 2003. The filming took place in April and June and was followed by post-production work which carried on until the Autumn. Following its completion the short was entered for the BAFTA short film award, the closing for which was 17th November 2003, so beyond any possibility of doubt the short had been finished by that date. It was then distributed by the British Film Institute from 1st January 2004 onwards.

He goes on to say that having completed the short he then expanded the screenplay to create the screenplay for the feature and, as I have already explained, was able to complete the actual writing of that screenplay in some seven to ten days, sending completed instalments to his producer, Ms Bausager.

The feature was then produced by the Second Defendant. Pre-production took place between March and April 2005. Filming began in May 2005 and was mainly completed by 2nd July in that year. Post-production was in turn completed by 8th December 2005. It was then released in a number of foreign territories beginning, as I have said, with France in 2007 and it has now very recently been released in the United Kingdom.

It may be helpful at this stage to compare two synopses of the scripts with which I am primarily concerned: firstly, the Claimant’s and, secondly, that for the short. These are exhibited to the witness statement of Ms Natalie McCarthy who is a solicitor with Messrs Russells, the Defendants’ solicitors.

I start with the synopsis for the Claimant’s screenplay, which she explained to me in her oral submissions today is the latest version, but I imagine the earlier versions do not differ in any very major respects, although of course the story has evolved. In any event, in the only version which is in evidence, which is this particular one, the synopsis is headed “Cashback Paper or Plastic.” It says the story is set in South London. It opens with a fictional gospel church which has recently lost its main leader, the church being therefore at a crisis point. The church’s money has been swindled by the church accountant. There is a lot of antagonism and in-fighting between the Africans and West Indians who make up the congregation. The protagonist, who is called Faith, is at a standstill in her life. She is working in the supermarket as a checkout girl, actively looking out for the one who will make a difference to her life. To summarise, she becomes disillusioned with the church and the gossip and she walks out on it. However, she soon bumps into an old boyfriend and childhood friend, Thomas. Their former love is rekindled, much to her mother’s dismay. Thomas is a former peddler of drugs. He is now a self-employed electrical technician. He borrows money from the Granville brothers, who I have mentioned, who are described as a second level bunch of crooks who have big plans to take over the counterfeiting world in Europe.

By a twist of dramatic irony the money which is lent by the Granvilles to Thomas is then stolen back from Thomas by the egregious Granville brothers. Thomas finds himself having to contend not only with the Granvilles but also with his girlfriend who is not altogether convinced that the missing money came from loan sharks and that Thomas has not gone back to his bad old ways of drug peddling. The synopsis ends, “Will love save the day?” I do not know the answer to that question but, in any event, that is the synopsis and that is, it seems to me rightly, characterised as a romantic comedy.

By contrast the synopsis for the First Defendant’s Cashback, and this is for the short, is very short and I will quote it in full.

“Ben Willis works the nightshift at the local supermarket. From the sexually harassed checkout girl to the daredevil stuntman in the meat department, Ben has discovered that all the staff have perfected an art in dealing with the boredom of an 8 hour shift. But Ben dreams of becoming a painter and his art becomes a sophisticated daydream about the essence of beauty found in the female form.”

That is the end of that synopsis.

One can see at once that there are some very substantial and obvious differences between the two creations. In the Claimant’s screenplay one finds a number of locations apart from the supermarket, most obviously the church where the action starts. There is a background of moral and perhaps religious issues and behaviour. There is the involvement of the gang of crooks, the Granvilles, who have no parallel whatever in the first Defendant’s screenplay. The Cashback of the title is used in an ironical fashion to refer to the way in which the money is stolen back from Thomas to whom it has been lent, and there are all the trappings of a conventional romantic comedy boy meets girl story. None of that seems to be present in the first Defendant’s conception which I described in argument, and the Defendants’ Counsel did not demur, as some kind of arthouse reverie.

The relevant law is not I think in dispute. It is very helpfully and conveniently set out in the skeleton argument of Mr Moody-Stuart who has appeared before me today for the Defendants. He submits, and I agree, that in order to establish copyright infringement a claimant must demonstrate that the defendant has, without the permission of the copyright owner, carried out one of the acts restricted by copyright in a work pursuant to section 16 of the 1988 Act. He then cites section 16, subsection (1) of which provides that the owner of the copyright in the work has the exclusive right to do the following acts in the United Kingdom, and I am concerned with (a) to copy the work, those acts being referred to as acts restricted by the copyright. Section 16(2) goes on to say that copyright in the work is infringed by a person who without the licence of the copyright owner does or authorises another to do any of the acts restricted by the copyright, and subsection (3) extends the concept of acts restricted by the copyright to acts in relation to the work as a whole or any substantial part of it and done either directly or indirectly. There is also a further qualification, which does not matter for present purposes, which is that it is immaterial whether any intervening acts are themselves infringing acts.

So, pausing at that point, an indirect copying of any substantial part of the Claimant’s screenplay would, if it were to be substantiated, amount to a breach of her copyright. I should say that her copyright is not formally admitted on the statements of case but for the purposes of this application I am asked to assume that it has been established and that she is indeed the copyright owner.

Section 17 then sets out further particulars of copying which I do not think I need take time to set out. It is enough to say that by subsection (2) copying in relation to a literary work means reproducing the work in any material form and it is not disputed that that could take the form either of copying in a different screenplay or copying through the medium of a film.

Reference is also made to a very helpful summary of the relevant principles given by Lord Justice Mummery in the recent case known to the world as the Da Vinci Code case, Baigent v Random House, 2007 EWCA Civ 247, [2007] Fleet Street Reports 24 at paragraph 124. To save time I will not read out paragraph 124 but it should be treated as incorporated in this judgment and it is set out, as I say, in Mr Moody-Stuart’s skeleton argument.

Finally, the question of what constitutes a substantial part, and again this is common ground, is to be judged on qualitative rather than quantitative terms. The authority for that proposition is the decision of the House of Lords in Designer’s Guild v Russell Williams [2000] 1 WLR 2416.

Against that background I now have to consider whether the Claimant does indeed have an arguable case. It will be convenient to consider first the issues of chronology and access because they do interrelate.

So far as chronology is concerned, Mr Moody-Stuart submits, and again I would agree with him, that the window during which the Defendants must have had access to and copied the Claimant’s work, if her case is to succeed, must on the evidence as it stands be between December 2002, when the screenplay for the short was created, and July 2005, when the filming of the feature was completed. However, on the Claimant’s own evidence she did not complete her screenplay, although of course she had been working on it for some time, until July 2003 when it was registered with Raindance. That in itself makes it very difficult to see how there could have been any infringement by the short, and if it cannot be shown that the short infringed in any way, it is then exceedingly difficult to see how the feature could have done so, given the evidence that it derived from the short. There is no positive evidence that any external input was either sought or derived at that stage of the history.

Perhaps seeing the problem that this caused, Miss Obisanya submitted to me today that at an earlier stage she was circulating earlier thoughts of hers, earlier drafts, by email to various people, and she hypothesised that such emails might have come the way of the Defendants or people working for them. However, that case is not foreshadowed in any of her written pleadings and there is nothing whatever in the way of solid evidence to support it. I am afraid I cannot regard that as any more than a speculation which has no foundation in the evidence and therefore it is not something upon which I could properly place any reliance, particularly given the express denial by Mr Ellis that he derived his work in any shape or form from the Claimant’s work and the detailed explanation he has given of how he himself found inspiration for his own screenplay.

At various other stages the Claimant has suggested that the Defendants might have obtained access to her work from other possible sources. One of those sources was the UK Film Council to whom she says she submitted her work on a number of occasions between July 2003 and December of that year. It is enough to say that the Defendants have taken up this possibility with the UK Film Council and obtained from them an email dated 19th February 2008 in which they confirm that the Claimant did indeed apply to them with a project entitled Cashback or Cash-back on two occasions. Both submissions, however, were declined. They explained that they do accept unsolicited funding applications for film development and production projects which are then reviewed internally by staff and also by external readers. However, both readers and staff are contracted on terms which contain strict confidentiality clauses. It follows that there is no reason to suppose that any material based upon the Claimant’s screenplay could have leaked out from that source. Certainly any such leak would have involved a breach of confidentiality clauses and in the absence of positive evidence I have no reason whatever to suppose that anything of that sort ever happened.

A second suggestion was that the First Defendant, Mr Ellis, might have been the same person as a man called Sean who attended workshops at the Raindance Film Academy in 2003. However, not only does Mr Ellis deny this but again the Defendants have obtained confirmation from the Raindance Film Academy that he did not attend any events under their aegis at the relevant time, and they added that their records go back to, I think, May 2000, so plainly they cover the whole of the period during which any such contact might have taken place.

The upshot of all this is, in my judgment, that there is really no solid evidence at all of access by the Defendants or anyone on their behalf to the Claimant’s screenplay at any time before the short had been completed as a script, or indeed before filming of the short had finished in June 2003. It seems to me that the Claimant’s case founders on the chronology alone because the dates and the evidence simply do not enable the inference to be drawn that access must have been obtained which enabled copying to take place; and without access, of course, no question of copying can arise.

In her submissions to me today Ms Obisanya has said that if this matter went to trial she might hope to do better because there will be witnesses to cross-examine and the matter could be investigated more fully than is possible on a summary judgment application. However, it would be wrong for the Court to allow a matter to go to trial on a purely speculative basis where no foundation of the allegations has been laid in the first place.

Apart from the problems with the chronology, there are equally grave problems, in my judgment, with the alleged similarities. The Claimant’s case is that the similarities to which I have referred are so striking that one has to infer that copying must somehow have taken place, on the footing that there could not be any other reasonable explanation for the similarities. I have to say, however, that I profoundly disagree. I have already pointed out the major differences which exist between the general conception of the First Defendant’s film and the nature of the Claimant’s screenplay. Those differences are analysed rather more fully in the witness statement of Ms McCarthy and seem to me to fully justify her conclusion that the two scripts are dealing with entirely different genres.

If one moves on to the similarities themselves, that is to say the title, the supermarket location, the existence of a protagonist who works at the till, the involvement of a busty young woman in the script and the offer of cashback to a customer, I have to say that these are no more than commonplaces of modern life and mostly what one would expect to find in any film entitled Cashback, or dealing with the boredom of life behind a till in a supermarket. It is impossible to elevate this mundane material stated in those bald terms to such an extent that one must infer the copying of one from the other. The obvious, and it seems to me the right, explanation in the present case is that these are ideas which occurred independently to two people who were working in the film world and who hit upon the same general idea as the starting point to make a film.

That seems to me to be the beginning and end of the matter and I am sorry to say that, although I do not doubt for a moment the sincerity with which the Claimant has advanced her case, and I pay tribute to the courtesy with which she has addressed me today, in the end I am driven to the conclusion that really there is no substance to her case at all. In my judgment it has no reasonable prospect of success and there is no other reason why the matter should go to trial. So I will therefore grant summary judgment on the Defendants’ primary application.

Turning now to the counterclaim, Ms Obisanya does not contest that she made a number of highly damaging allegations to trade bodies, the particulars of which are set out in the Defence and I need not repeat them, on various dates in 2005 and early 2006. Those dates are some time in the past now but, as I understand it, similar allegations are still to be found on her website and, although she has been asked to give undertakings, she has to date refused to do so.

Mr Moody-Stuart submitted to me that the counterclaim was in substance the mirror image of the claim and that if the claim was struck out then the Court should be inclined to grant the injunction and declaration sought.

Certainly so far as the declaration is concerned it seems to me that it follows as the mirror image of the claim. An injunction is always a discretionary remedy and I have considered whether it is necessary or appropriate for me to grant an injunction in the circumstances of the case. However, it seems to me that, given the number and terms of the allegations which are in evidence, and given the refusal of the Claimant to offer suitable undertakings, this is a case where an injunction would be justified. It will not, I hasten to reassure her, do more than prevent her from repeating the allegations which I have found to be ill-founded in the present action, but it seems to me right that the Court should reinforce that conclusion by making an order forbidding her from making similar allegations in the future. There may be some small points on the wording which I can consider now with Mr Moody-Stuart, but in substance I will grant the relief sought on the counterclaim, as well as that sought in relation to the main claim.