Omni-Shambles – TV format claim fails against Baby Cow

Yet the court found that Shambles was not protectable, as it was not capable of being performed, nor was it identifiable with sufficient specificity. Even if it were protectable, there was no evidence of direct or indirect copying, and any similarities were generic and commonplace. The decision illustrates that, while theoretically possible, it is very hard for the format of a TV show to constitute a dramatic work protected by copyright.

Background

Joshua Rinkoff, professionally known as Harry Deansway, claimed copyright in the format of Shambles. Shambles had originally been a live comedy show run by Mr Rinkoff in pubs and bars in North London before he decided to create a “digital version” of the show, which combined live stand-up sets with a behind-the-scenes narrative in the form of a heavily improvised, mockumentary-style sitcom. Six shows were filmed and distributed via his YouTube channel in 2013. He then entered into an agreement with Wildseed Productions Ltd, which financed and produced a further series of six shows, released on their YouTube channel in 2015. The shows were removed in April 2022.

Baby Cow produced five shows for the UK TV channel Dave called Live at the Moth Club (LATMC), which were broadcast from December 2022 to January 2023. LATMC consisted of live stand-up performances and a series of scripted sketches showing life behind the scenes at the comedy club. Rupert Majendie, the head of development at Baby Cow, was the driving force behind the programme. Mr Majendie previously ran live comedy gigs (including at the Hackney venue, The Moth Club). Mr Rinkoff and Mr Majendie knew one another, but fell out in 2012, when Mr Rinkoff staged a protest at a show run by Mr Majendie at the 2012 Edinburgh Fringe. Yet they are believed to have restored their friendship by 2021.

Issues

The claimant pleaded that the Shambles format was protected as a dramatic work for the purposes of the Copyright, Designs and Patent Act 1988 and had been infringed by copying and communication to the public. The claimant issued a claim on 31 May 2023, followed by a set of amended particulars of claim in February 2024.

The questions for the court were as follows:

• Can a format be protected as an original dramatic work?
• Was the format of Shambles protected as a dramatic work?
• Was Mr Rinkoff the author of the format of Shambles?
• Was Mr Rinkoff the owner of any copyright that might subsist in the format of the second series of Shambles?
• Were certain pleaded features of LATMC copied from Shambles?
• If any of those features were copied, did they amount to a substantial part of any protected work?

Decision

Copyright in the format of Shambles

The judge, Miss Amanda Michaels, ruled that the format of Shambles was not a work capable of being protected by copyright as a dramatic work.

Baby Cow denied that a format of the kind relied on by Mr Rinkoff was protectable as a dramatic work, and also denied that the two series of Shambles had a format identifiable with sufficient precision and objectivity for protection as a copyright work.

Neither party’s counsel could identify any UK case in which a claim that a format was protected as a dramatic work has succeeded. The judge referred to Banner v Endemol,^[2] in which Snowden J took the position that it was at least arguable that copyright could be established in a TV format as a dramatic work, and set out the following minimum requirements: “(i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied to as to enable the show to be reproduced in a recognisable form”.^[3]

The judge also cited the comment in Copinger and Skone James that a useful test is whether, using the written script or other record as a basis, it is possible to present a coherent and meaningful show that is capable of being performed.^[4]

In his amended particulars, the claimant had alleged that eight distinctive features formed a coherent framework. Those were:

• the setting of a comedy club struggling to make ends meet, based in a real-world venue which is not a full-time purpose-built comedy club;
• blending of fictional scenes involving situation comedy and actual stand-up performances by up-and-coming acts and established names filmed in front of a real audience at the club;
• staging of interactions between the fictional characters of the sitcom scenes and, among other things, the stand-up comedians in the live performance scenes to create a unique blend of fiction and documentary, including interactions between them and audience members;
• the use of cinema verité techniques (e.g. handheld camera footage, dialogue that appears to be unscripted, staging scenes in a “fly on the wall” manner) to imbue scenes with a sense of realism and authenticity, but also to add a general dry and deadpan humour to the series;
• a promoter character as the protagonist of the show;
• a hapless club-owner character, who owns and runs the venue, and who tries but fails to help the protagonist;
• an intern character and junior member of the team who likewise tries but fails to assist the protagonist; and
• the constant presence of a variety of industry characters (e.g. agents, producers and talent scouts), coming up with bad/surreal ideas for the comedy night.^[5]

The judge identified two difficulties.

• First, there was a lack of clarity in the claimant’s case as to when this format was created, although the judge concluded that the intent was to rely on it as applied and recorded in both of the series (i.e. including the series produced by Wildseed).
• Secondly, the claimant did not claim that all eight features were present in all of the episodes of Shambles. If all of the pleaded features were not present in every episode, then the format could not be found in every episode, which suggested that the format was either not a work, or it did not have a fixed expression, or both.

Baby Cow submitted that the eight features were unprotectable ideas, as they were not clothed with the necessary detail to reflect creative choices made by the claimant. The judge agreed and found that the features did not reflect the central premise of Shambles, which she found to be the protagonist’s struggles to run his comedy nights, rather than a combination of real stand-up comedy with a back-stage sitcom.

Accordingly, the judge found that the eight features, taken together, did not have the necessary qualities to amount to a dramatic work that could be protected by copyright, so failing Snowden J’s test from Banner. They did not have a coherent framework that could be repeatedly applied so that the show could be reproduced in a recognisable form. The judge found the features to be “at a fairly high level of abstraction”, which was “inadequate to enable anyone to create, perform or reproduce an episode of Shambles”,^[6] nor were they organised into a unified work that could be performed. All of the features had been too loosely described to be necessarily distinctive.

Authorship

The judge decided that she would still consider the other questions put to the court, in case she was incorrect on the central point in relation to subsistence of copyright.

As to whether the claimant was the author of the format, even though there was evidence to suggest that there had been some character development suggestions made by a producer at Wildseed, the claimant maintained that he had not accepted those. The judge found that the claimant was the sole author of the alleged format.

Ownership of copyright works

Baby Cow maintained that the claimant was not the owner of any copyright, because of the terms of the contract between the claimant and Wildseed. The claimant produced a witness statement from a Mr Bullough at Wildseed, stating that it was his understanding that Wildseed owned the copyright in the recordings of Series 2, but the underlying rights in any “Existing Material” (as defined in the agreement) and in the format remained with the claimant. The Wildseed agreement set out that: (a) the claimant was the owner of “the entire copyright and all other rights in the Existing Material” (although the exact definition of Existing Material was missing); (b) Wildseed intended to commission and produce a pilot based on the Existing Material; and (c) all rights in the “New Content” would be owned by Wildseed.

The court agreed with the defendant’s construction of the agreement that the contract comprised an assignment of any future rights in any New Content that might have belonged to the claimant as its author. So, given the judge’s finding that the copyright claimed in the format was the format as it stood at the end of the second series (meaning that some or all of the parts of the format may have fallen into the category of New Content that was owned by Wildseed), the copyright in the format in question would belong to Wildseed.

The judge considered that, if she was wrong in concluding that there was no copyright in the format, then the question of joint or divided ownership might need to be resolved.

Infringement

The judge took the final two issues together (i.e. whether the LATMC format had been copied from Shambles, and whether any copied elements amounted to a substantial part of any protected work). After reviewing the evidence, the judge concluded that there were no grounds to draw any inference that LATMC had been copied from Shambles.

The claimant’s initial position was that Mr Majendie had seen Shambles and deliberately, consciously copied it. In closing, however, the claimant submitted that the similarities between the shows were too numerous to be explained by coincidence. The claimant argued that this must have flowed from unconscious copying, through Mr Majendie’s influence on the writers, or through Adam Hess, who had helped Mr Majendie write the pilot and appeared in one episode of Shambles (although he was not involved in the five episodes that were ultimately broadcast). The judge found this to be “a wholly speculative line of argument”,^[7] and held that there was no evidence to support that theory. She accepted Mr Majendie’s evidence that he was vaguely aware of Shambles, but had forgotten about it when he came up with the idea for LATMC, and the evidence from the writers of the series Ben Ashenden, Alexander Owen and Ellie White, who stated that they had not seen Shambles.

The judge also found that the similarities between the shows did not seem to raise an inference of copying. They were at an “extremely high level of generality”,^[8] with the live comedy elements of LATMC far more significant than in Shambles, and it was much more a “faux documentary” than a sitcom. The court found that there was very little similarity between the characters, and that where there were characters with some similarity, those were stock characters operating by using stock comedic devices (e.g. behaving incompetently). The court also found that any similarities of plot referenced were also sufficiently different not to suggest that one was copied or inspired by the other. So, no infringement could have taken place, even if copyright could be claimed in the format itself.

Comment

There remains no case in the English courts in which the subsistence of copyright in a TV format as a dramatic work has been demonstrated, even if it is generally acknowledged to be possible in principle. This case exemplifies the challenge that claimants face in trying to prove subsistence of copyright in a TV format. Despite that, formats are generally recognised within the audiovisual industry as a practical matter, and format owners should take all the steps they can to try to establish the protectability – and so the commercial value – of the format.

Accordingly, this case serves as a cautionary tale for any TV format creators, who should ensure that all aspects of the format are clearly documented to try to ensure that the replicable distinctive features and overall coherence of the format can be precisely identified. It is also crucial to set out a high level of specific detail in such documentation and to demonstrate how those particular features combine to amount to a performable dramatic work, so that the format can be easily repeated in a recognisable form to produce the same type of show.  

Further, claimants that allege ownership of a TV format should plead any court case with considerable care, avoiding generalities and focussing on the particular distinctive features and their coherence when taken together. They should also consider whether any associated format aspects are protectable by other intellectual property rights, such as other copyright elements and/or trade marks. Again, those should be pleaded with precision – if, at any rate, they are to avert an avoidable comedy of errors.

Article written for Entertainment Law Review