[2025] EWHC 39 (IPEC)

In the light of the terms of the contract between the Claimant and Wildseed, the Defendant alleged in an amendment to its Defence that the Claimant was not the owner of any copyright that might subsist in the format of Series 2 of Shambles. The Claimant was given permission to file a Reply in response to the amended Defence but did not do so. Instead, it produced the witness statement of Mr Bullough of Wildseed, who said that it was his understanding that Wildseed would own all copyrights in the recordings of Series 2 but the underlying rights in the Existing Material and any rights in the underlying copyright in the format for the Shambles episodes, including Series Two, remained with the Claimant.

The Wildseed agreement was made on 1 September 2014. The Claimant is identified as the “Owner” and Wildseed as the “Company”. So far as relevant it included the following recitals:

•

The Owner is the absolute Owner of the entire copyright and all other rights throughout the world in the Existing Material (as defined in Schedule one attached hereto).

•

During the Initial Term the Company intends to commission produce (sic) a pilot based on the Existing Material (“the Pilot”) of up to one hour which the Owner will write the scripts for, perform in and direct.

•

The Owner has agreed to grant to the Company the sole and exclusive right to exercise the Underlying Rights (as defined below) in the Existing Material and the Pilot … and to assign to the Company all copyright and all other rights in any material that is produced by the Company as a result of the exercise of the Underlying Rights (“the New Content”) on the terms and conditions set out below.

The terms included:

1.1

… in consideration for the Company paying the Owner the sums set out in clause 3, the Owner hereby grants to the Company the exclusive right to utilise, reproduce and adapt the Existing Material including all underlying material contained therein for use in any media worldwide (“the Underlying Rights”) for a period commencing on the date of this Agreement and lasting for a period of twelve months from the earlier of the date that the Pilot is completed by the Company or until the 31^st December  2015 (“Initial Term”).

3.1

The Company agrees to further develop the Existing Material and Pilot during the Initial Term …

3.2

The Owner agrees to support the development of the New Content including but not limited to making variations, reproductions and or adaptations of the Pilot, the scripts and Existing Material, …

3.3

The Owner agrees to write the scripts for and to perform in the Pilot and provide his directing services thereto in line with production and editorial discussions with the Company’s representative …

4.1

The Owner hereby grants to the Company with full title guarantee, all current and future rights, title and interests they have in and to the New Content, scripts and the Pilot worldwide in perpetuity.

4.2

… the Owner hereby grants to the Company with full title guarantee, all current and future rights, title and interest in and to the product of the Owners Services hereunder worldwide in perpetuity.

5.4

The Owner shall have the first option to provide his services as writer, performer and director for any New Content produced by the Company …

Clauses 1.4 and 1.5 also provided for the Company to buy out the Claimant’s rights in the Underlying Material in certain circumstances, which have not occurred, so far as I am aware. Schedule 1 to the agreement was missing.

The Defendant submitted that the agreement drew a distinction between Existing Material and “all underlying material contained therein”, and any “New Content” developed pursuant to the agreement. It said that the effect of clause 4.1 was that all rights in the New Content, even when created by the Claimant, would be owned by Wildseed. I agree with that construction of the agreement. In my judgment, it comprised an assignment of any future copyright in any New Content which might have belonged to the Claimant as its author, reflecting the third of the recitals set out above.

The Defendant did not challenge that construction of the agreement but suggested that in the light of Mr Bullough’s evidence, it would, if necessary, have been possible to cure any lack of title by an assignment to the Claimant. Mr Sampson also submitted that Wildseed did not acquire any rights in the format, as all of the key elements of the format were already found in the Existing Material. This highlights the difficulty which I have already mentioned of the lack of clarity as to when the format in issue was fixed. I accept that there may have been a format in place by the end of Series 1 of Shambles, but for the reasons I have already given, I consider that the copyright claimed in these proceedings is of the format as it stood on completion of Series 2. Some part or parts of that format may therefore have fallen into the category of New Content. I was not addressed on this point in detail and do not consider that I should make any finding at this stage as to whether any element of the pleaded format was exclusive to Series 2. If and to the extent that there is any such part of the format, and copyright subsists in the format, in my judgment copyright in the New Content would belong to Wildseed. If I am wrong in concluding that there is no copyright in the format, then the question of joint or divided ownership may need to be resolved.

The last two issues may be taken together, namely whether the pleaded features of LATMC were copied from Shambles and whether, if any of those features have been copied, that amounted to taking a substantial part of the protected work.

There was common ground as to the test for copying and infringement under the Act. Copyright in a dramatic work may be infringed if, among other things, it is copied, and copying means “reproducing the work in any material form.” To amount to actionable infringement, the copying must be of the whole or a substantial part of the work, in qualitative rather than quantitative terms. Both parties referred me to the decision of Zacaroli J in Sheeran v Chokri [2022] EWHC 827 (Ch), [2022] FSR 15. The allegation was that the Claimant (who sought a declaration of non-infringement) had copied a musical work, consciously or unconsciously. Zacaroli J said:

“21.

To amount to an infringement, however, the copying must be of either the original work or a “substantial part” of it: s.16(3)(a) of CDPA. This is a qualitative, not quantitative, question. The test is whether the part in question contains elements

which are the expression of the intellectual creation of the author of the work: Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890,

at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] E.C.D.R. 16; [2010] F.S.R. 20. The essential consideration is to ask whether

a defendant has taken that which conferred originality on the claimant’s copyright

work (or a substantial part of it): Mitchell v BBC [2011] EWPCC 42, per HHJ Birss QC at [28]-[29].

…

24.

While the legal burden rests with the person alleging infringement, in the case

of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. There was some debate as to whether what was required was proof of access, or proof of the possibility of access.

25.

The weight of authority supports the former: see, for example, Designers Guild

(above), per Lord Millett at p.2425E; Baigent v Random House [2007] EWCA Civ

247; [2007] F.S.R. 24 at [4], although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to internet sites daily. It clearly

cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. …

26.

Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.

27.

The leading case on subconscious copying is Francis Day & Hunter v Bron (above), in which the Court of Appeal established that, although it was possible to demonstrate that a person had infringed copyright without intending to do so, it was nevertheless necessary to establish “proof of familiarity” with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work …

28.

Whether there has been subconscious copying is a question of fact to be determined on the basis of all the evidence (and does not rest on the shifting of an

evidential burden: see Mitchell v BBC (above) at [39]). There will rarely, if ever, be direct evidence of subconscious copying, so it is necessary – as with any issue

where direct evidence is lacking – to reach a conclusion based on inferences from

other evidence. The following direction which the trial judge, Wilberforce J, had

given himself was approved by the Court of Appeal in Francis Day (at pp.614-615):

“The final question to be resolved is whether the plaintiffs’ work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs’ work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants’ work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer’s own evidence on the presence or otherwise

in his mind of the plaintiffs’ work.””

In this case, the Claimant’s pleaded and pre-trial position was that Mr Majendie would have seen Shambles and had deliberately, consciously copied it in producing LATMC. He emphasised the availability of the show online, the social media posts which related to it, his past relationship with Mr Majendie, and the closeness of the comedy industry, all of which, he said, pointed to Mr Majendie having access to the shows. In his witness statement, Mr Majendie accepted that he vaguely recalled being aware of Shambles, but had forgotten about it when he came up with LATMC. Mr Majendie said that when Mr Rinkoff complained about it, he had a quick look at Shambles online and it did not spark any clear memory of having seen it. I take this to mean that he accepted that he had watched some of Shambles some years before making LATMC. On the other hand, I accept his evidence that he did not have Shambles in mind when he conceived the idea of LATMC.

In the Claimant’s skeleton argument for trial, it was also suggested that Mr Ashenden and Mr Owen must have “had one eye on Shambles” when writing LATMC. The Claimant argued that the similarities between the shows, characters and plotlines were such that it was for the Defendant to showthat LATMC had not been copied from Shambles, and to suggest otherwise was unrealistic.

The allegations of direct copying were not pursued at trial. Mr Ashenden, Mr Owen and Ms White who wrote much of LATMC all disclaimed any knowledge of Shambles. I believed them. The only way in which they could have copied Shambles would have been indirectly through the influence or intervention of Mr Majendie, who had seen Shambles. All of the Defendant’s witnesses were cross-examined on the influence of Mr Majendie on the creation of LATMC and all of them accepted that he had initiated the project and remained involved in its development. It was not put to the Defendant’s witnesses that they had copied Shambles or that they were lying as to the shows and experiences that they said had inspired LATMC, nor did the Claimant pursue a case of conscious or deliberate copying in his closing submissions.

Instead, in closing, Mr Sampson submitted that the similarities between the shows were too numerous to be explained by coincidence, and they must have flowed from unconscious copying. It was suggested that Mr Majendie had influenced the writers of LATMC, and this unconsciously led to the copying of characters, plotlines or other aspects of Shambles. I discuss the alleged copying below.

Alternatively, the Claimant suggested thatcopying may have arisen through the agency of Adam Hess, who had written the Taster, and who had appeared in one episode of Shambles. However, the Taster is less similar to Shambles than the full shows with which Mr Hess had no involvement, and in particular did not contain the central characters of Ellen and George who are said to be copied from Harry and Greg in Shambles. Mr Majendie said that Mr Hess had not passed on to him material or ideas other than those which appeared in the Taster and there is no reason to doubt that evidence. There was no evidence at all to support this theory of indirect copying, and I find this to be a wholly speculative line of argument. I do not consider that the Claimant has even raised an inference that the involvement of Mr Hess led to indirect and/or unconscious copying of Shambles.

Furthermore, the similarities between the shows identified by the Claimant do not seem to me to raise an inference of copying. The main complaint is that LATMC is set in an almost identical setting (a run-down comedy venue) and combines scenes of real comedians performing on stage with backstage scenes featuring a range of fictional characters. In my judgment LATMC may have the same central underlying idea as Shambles, but that does not by itself lead to any inference that the pleaded format of Shambles has been copied as a whole or in substantial part. The examples given by the Claimant to illustrate his allegations of similarity in paragraphs 19.1 and 19.2 of the Amended Particulars of Claim do not seem to me to show any significant similarity, and certainly not similarity sufficient to raise an inference of copying. Thesimilarity is at an extremely high level of generality. Not only are the live comedy elements of LATMC far more significant than in Shambles but the overall premise of LATMC is much less evidently a sitcom and much more a faux documentary than Shambles, that difference being reinforced by the backstage characters of LATMC being aware of the camera andspeaking directly to camera, generally in a deadpan manner.

The Claimant suggested in paragraph 19.4 of the Amended Particulars of Claim that Harry’s character in Shambles was copied by Ellen’s character in LATMC. I do not accept thatthose characters are similar enough to raise any inference of copying. Ellen is not herself a comedian/performer, nor is she the MC of the comedy nights. She is not portrayed as being down on her luck, unlike Harry, albeit she is just as frustrated as he is in running the comedy nights. The Scene Selections for paragraph 19.4 of the Amended Particulars of Claim are for scenes in which Ellen experiences difficulties but do not, in my view, come anywhere near close enough to any pleaded feature of the Shambles format to support an allegation of copying.

The alleged similarities between the characters of the managers/owners of the clubs and their useless assistants do not seem to me to suggest copying so much as the use of stock characters. There is said to be a running joke about Greg trying to fix defects at the club, which is replicated in the character of George, but this does not strike me as a significant part of Shambles nor is itlikely to be due to copying. Mr Majendie’s unchallenged evidence was that the character of George was based upon a real manager of the Moth Club. The incompetence of most of the sitcom characters in both shows seems to me to be a stock comedic device, as competence is rarely funny. Again, in my judgment, the Claimant’s illustrative Scene Selections do not support an allegation of copying.

The Claimant also pleaded at paragraph 20 of the Amended Particulars of Claim that there were plot similarities which showed that LATMC was copied from Shambles. None of these strike me as particularly similar and they do not suggest to me that there was indirect or unconscious copying. For instance, it was alleged that there was a joke about “a junior member of the comedy club team writing material for one of the stand-up shows.” In Shambles, this was when Joe was persuaded to write a set to perform himself, which of course was dreadful. In LATMC, Freddie the sound man tries to write a set for a real stand-up, Phil Wang, when he is supposedly unable to perform his own material. George helps Freddie out. This set too is dreadful. However, the basic premise of the two incidents strikes me as sufficiently different not to suggest that one was copied or inspired by the other. I take the same view of the further examples given in paragraph 20 of the Amended Particulars of Claim.

Two further matters intended to show copying (but not pleaded as such) were the subject of cross-examination. First, the Claimant pointed to a proposal in June 2022 by The Pin to include a character in LATMC of a clumsy bar manager to be called Maddie, who would be George’s niece. The Claimant suggested that this was copied from the character of Lex inSeries 2 of Shambles, who was a barmaid and Greg’s niece. However, it is clear that the idea came from The Pin, not from Mr Majendie, as his reaction to the proposal was that there were too many characters, and he seems to have queried "Maddie.” Her character did not make it into the show. In the light of the oral evidence, to the effect that the idea for this character emanated from Mr Owen and Mr Ashenden, I conclude that this was coincidence and not indicative of indirect copying. Similarly, the Claimant pointed to a proposed but unused plot line for LATMC, based upon the club being haunted. It was suggested that this reflected a similar plot in Shambles Series 2.Mr Ashenden thought that this was just a rather unoriginal idea, and Mr Majendie agreed, which probably explains why the idea was not used. I understand why these similarities raised the Claimant’s suspicions, but in my view the unchallenged evidence of the Defendant’s witnesses proves that the similarities were not due to copying, direct or indirect.

In all the circumstances, I do not consider that there are grounds to draw an inference that LATMC was copied from Shambles.

For all of these reasons, the claim fails.

This judgment will be handed down remotely. If the parties are unable to agree the appropriate form of order, a hearing will be listed through the usual channels to resolve the Order, and the time for appeal will, if necessary, be extended to run from the date of that hearing.