[2025] EWHC 39 (IPEC)

The Amended Particulars of Claim claims that the format of Shambles is protected as a dramatic work. In my judgment, the statement of case cannot be read as suggesting that the format of Shambles is protected as any other kind of work, whether or not of a kind expressly identified in the Act. Hence this is not a case in which it is necessary to consider the copyright protection of any other category of work, whether identified in the Act or not, and the tensions which have been discussed in other cases between the UK and EU approach to “works.” See for instance Wright v BTC Core [2023] EWCA Civ 868; [2023] F.S.R. 21, especially at [53]-[60].The Claimant’s case as set out in the skeleton argument for trial and in Mr Sampson’s oral submissions turned on whether the format amounts to a dramatic work. Moreover, as already explained, the Claimant’s complaint relates to copying of the format, not to copying of any literary copyright works contained within the shows, or any other kind of copyright in the recordings of the shows, and it is not his case that the work has been infringed by verbatim copying or paraphrasing the dialogue of Shambles.

The Defendant’s pleaded position was that a format of the kind relied on by the Claimant is not protectable as a dramatic work but, in any event, it denied that the two series of Shambles have a format, let alone a format that is identifiable with sufficient precision and objectivity for protection as a copyright work.

Dramatic works are one of the specific categories of work capable of protection under the Act (as amended). It provides that:

The Act gives no further guidance as to the nature of a dramatic work. In Copinger and Skone James on Copyright, 19th ed. (December 2024), paragraph 2-113 reads (footnotes omitted):

“The 1988 Act continues the general approach of the earlier Acts in that, unlike the cases of literary and musical works, it does not attempt a comprehensive definition of a dramatic work, merely stating that it includes a work of dance or mime. It also includes plays, screenplay and scripts for TV shows (at least when intended to be performed live and recorded before an audience). Although it is expressly provided that a literary work cannot be a dramatic work, there is no express exclusion, unlike in the case of the 1956 Act, of the possibility of a film being a dramatic work. ... As to what comes within the general description of “dramatic work”, the expression is at large and should therefore be given its natural and ordinary meaning, which is that it is a work of action, with or without words or music, which is capable of being performed before an audience. This definition brings out the point that a distinguishing characteristic of a dramatic work is that it must be capable of being performed …”

It was common ground that copyright protects the embodiment of an idea, not the idea itself. The underlying law was helpfully summarised by Edwin Johnson J in Pasternak v Prescott [202] EWHC 2695 (Ch); [2023] FSR 9, in which he discusses in particular the important distinction between the “expression” of a work and the idea(s) underlying it:

“94.

Turning to the principles which govern copyright protection, these derive partly from English case law, but also from international treaties which have shaped the UK copyright regime, as well as EU law through Directive 2001/29/EC (“the InfoSoc Directive”). This part of EU law remains a retained part of UK law. 95. In terms of what is protected by copyright, the first principle to draw out is the general principle that copyright arises only in the expression of a work, and does not arise in ideas themselves.

96.

This distinction was explained by Lord Hoffmann in his speech in the House of Lords in Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416, at 2423A-D.

“My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co v Lawrence & Co (1890) 25 Q.B.D. 99 is a well-known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff’s work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author’s skill and labour as to attract copyright protection.”

97.

It will be noted that Lord Hoffmann identified two propositions in this extract from his speech. So far as the first proposition is concerned, ideas of a non-literary kind, such as matters of historical fact or technical information cannot be subject to copyright protection. As Mummery LJ explained in Baigent v Random House Group Ltd [2007] EWCA Civ 247; [2008] E.M.L.R. 7; [2007] F.S.R. 24, at [146]:

“It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work.”

98.

Turning to the second proposition, ideas of an artistic or literary nature are not necessarily subject to copyright protection. This principle was usefully explained by Laddie J, in IPC Media Ltd v Highbury Leisure Publishing Ltd (No.2) [2004] EWHC 2985 (Ch); [2005] F.S.R. 20, at [14]:

“The need to prove copying involves showing a design nexus between the defendant’s and the claimant’s works. However it is a mistake to believe that any nexus will do. The law of copyright has never gone as far as to protect general themes, styles or ideas. Monet, like those before him, acquired no right to prevent others from painting flowers or even water lilies or, to take an example referred to by Mr Howe, Georges Seurat would not have obtained, through copyright, the right to prevent others from painting in a pointillist style. Even someone who is inspired by Monet to paint water lilies or by Seurat to paint using coloured dots would not infringe copyright. Such general concepts are not put out of bounds to others by the law of copyright. Needless to say, it is impossible to define the boundary between mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other. Judge Learned Hand in Nichols v Universal Pictures Co 45 F 2nd 119 (2nd Cir. 1930) said that wherever the line is drawn will seem arbitrary. He also said:

“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.” (p.121)”

I was referred to similar comments made in Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3 at [34]:

“Copyright, of course, does not subsist in mere ideas, but in their expression. That proposition is a well-established one in English law, and is now also to be found in a number of international treaties and EU Directives: see art.9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”) and art.2 of the WIPO Copyright Treaty. The ideas/expression dichotomy has, however, been described as “notoriously slippery” … A mere idea, stripped of any context, is of course not the subject of copyright. Jacob J put it in this way in IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] F.S.R. 275 at p.291:

“The true position is that where an ‘idea’ is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the ‘idea’ is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the ‘idea’) of a novel or play can certainly infringe– if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between ‘idea’ and ‘expression’): ‘Nobody has been able to fix that boundary and nobody ever can’.””

Copyright does not subsist in a work unless and until the work takes some material form. This is the requirement of fixation, which serves to evidence the existence of the work and delimit the scope of its protection. See Wright (supra) again at [53]-[60] and [73]. As the authors of Copinger explain at paragraph 2-166:

“The reasons for this principle are practical. Since copyright is a form of monopoly in relation to the subject matter which is protected, there must be certainty as to what that subject matter is. This is necessary so as to be able both to prove the existence of the work and to establish what the work consists of, so that it can be judged whether the work has been copied or otherwise infringed. Fixation also provides a limit to the monopoly, ensuring that the protection accorded to the work does not extend beyond the expression of the work to the ideas or information contained or represented in it. This is necessary in holding a balance between the author’s interests and society’s interests.”

As explained by Edwin Johnson J in the passage from Pasternak cited above, the Act is to be construed in conformity with Directive 2001/29 (the Information Society Directive) and pre-Brexit CJEU decisions on copyright are retained law in the UK. The CJEU has consistently stated that copyright protects the expression of the author’s ideas, not the ideas as such. In Case C-5/08, Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569; [2010] FSR 20 at [33] ff., the CJEU explained the concept of originality at [33]-[37] and held at [45]-[47] that it is possible for relatively short parts of a longer work to be protected from copying where those parts of themselves form an expression of the author's intellectual creation.

Then in Case C-683/17Cofemel - Sociedade de Vestuario SA v G-Star Raw CV EU:C:2019:721, [2020] ECDR 9 the CJEU said:

“27.

Under Article 2(a) of Directive 2001/29, Member States are required to provide that authors have the exclusive right to authorise or prohibit reproduction of their works.

28.

The term 'work' referred to by that provision is also to be found in Article 3(1) and Article 4(1) of Directive 2001/29, on the exclusive rights granted to the author of a work with respect to its communication to the public and its distribution, and in Articles 5, 6 and 7 of that directive, the first of those provisions concerning the exceptions or limitations that may be applied to those exclusive rights, and the latter two provisions concerning the technological measures and information measures that ensure the protection of those exclusive rights.

29.

The concept of 'work' that is the subject of all those provisions constitutes, as is clear from the Court's settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation (see, to that effect, judgments of 16 July 2009, Infopaq International, C-5/08, EU:C:2009:465, paragraphs 37 and 39, and of 13 November 2018, Levola Hengelo, C-310/17, EU:C:2018:899, paragraphs 33 and 35 to 37 and the case-law cited).” (emphasis added)

In Levola Hengelo BV v Smilde Foods BV (C-310/17) EU:C:2018:899, [2018] Bus LR 2442, in which copyright was claimed in the taste of a spreadable dip containing cream cheese and fresh herbs, the CJEU said that two conditions must be satisfied for subject matter to be classified as a “work”. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation and secondly the “protected subject matter” had to be capable of being expressed in a precise and objective manner.

The parties therefore agreed that the test for the subsistence of copyright is:

As to the proper scope of a dramatic work, both parties took as a starting point the Court of Appeal’s judgment in Norowzian v Arks Limited (No. 2) [2000] F.S.R. 363. The primary question on the appeal was whether a film could be a dramatic work. Nourse LJ said at pages 366-7:

“In my judgment a film can be a dramatic work for the purposes of the Act. The definition of that expression being at large, it must be given its natural and ordinary meaning. We were referred to several dictionary and textbook definitions. My own, substantially a distilled synthesis of those which have gone before, would be this: a dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience.”

In Kogan v Martin (supra), when considering a claim to joint authorship, the Court of Appeal held that a screenplay for a film was a dramatic work rather than a literary work, with Floyd LJ explaining:

“41.

… It is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the case of a literary or dramatic work, whether the work is one of sole or joint authorship. …

42.

… What counts as an authorial contribution may vary depending on the type of work, however. A screenplay is concerned with providing a plot and dialogue which enable the reader to visualise what is going to happen on the screen, and get a feeling for what the audience will experience. The author is directly concerned with such matters as the choice of characters and the incidents in the film which will bring out those characters, and display their emotions. The storyline and plot are also of direct concern to the author and are a part of what he or she creates. These aspects of a screenplay can, in principle, amount to a contribution of an authorial kind.

…

66.

… the judge describes a screenplay as a literary work, like a novel, and

describes the primary skill as the selection and arrangement of words in the course

of setting them down. This passage fails to make what in our view is an important

distinction between a novel and a screenplay. We think a screenplay is more accurately described as a dramatic work, as its primary purpose lies in being performed, as opposed to being read, like a novel.”

It is clear from paragraph 42 of Kogan that the dramatic copyright protects the skill and effort used to create or select or, in this case perhaps, combine, the underlying concepts of the work. The concepts are not protected as such. This reflects the general principle that copyright protects only the expression of a work and does not subsist in ideas themselves.

In paragraph 66 of Kogan, Floyd LJ went on to set out a short extract from a passage from the then current edition of Copinger. In the most recent 19th edition that passage is at paragraph 6-98 and reads (with footnotes omitted):

“In the case of dramatic works which are written or otherwise recorded in words, if the language itself has been copied, no special considerations apply. However, a basic distinction between literary works and dramatic works is that the choice of dramatic incident and the arrangement of situation and plot may constitute, to a much greater extent, the real value of a dramatic work. ... It should be remembered that dramatic works include not only plays, screenplaysand scripts for TV shows (at least when intended to be performed live and recorded before an audience) … and that they may also take the form of a (cinematograph) film or audiovisual work.”

The Claimant also relied upon Shazam Productions Ltd v Only Fools the Dining Experience Ltd. [2022] EWHC 1379 (IPEC), [2022] FSR 25, where one issue before the court was whether a body of scripts for Only Fools and Horses taken together was a dramatic or literary work, including whether they collectively established as an independent work the characters, stories and imaginary “world” of Only Fools and Horses. Each individual script was found to be a dramatic work, but the claim that the collected scripts were also a single dramatic work was rejected, essentially because they were never intended to be performed together or sequentially.

In addition to these cases on the nature of a dramatic work, I was referred to a number of cases in which a claim was made to copyright in a format. The first of these was a decision of the Privy Council in Green v Broadcasting Corporation of New Zealand [1989] RPC 700 (the Opportunity Knocks case), where, in the context of a game show, the “dramatic format” was said to be “those characteristic features of the show which were repeated in each performance.” The features relied upon were, in addition to the title: the use of the catch phrases 'for [name of competitor] opportunity knocks', 'this is your show folks, and I do mean you' and 'make up your mind time', the use of a device called a 'clapometer' to measure audience reaction to competitors' performances and the use of sponsors to introduce competitors.

The Claimant drew my attention to the dissenting judgment of Gallen J in the appeal to the Court of Appeal of New Zealand. He held that:

“If the combination of material upon which the person seeking protection relies has a recognisable framework or structure and that framework is such as to impose a shape upon the other constituent parts of the show produced within it, then I should not have thought it contrary to principle to regards it as an original literary or dramatic work for the purposes of the [New Zealand Copyright Act 1962].”

However, the Privy Council upheld the majority in the NZ Court of Appeal. At p. 702 Lord Bridge of Harwich said:

“It is stretching the original use of the word “format” a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were “structure” or “package”. This difficulty in finding an appropriate term to describe the nature of the “work” in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the questions and answers in the quiz show etc.) and identified as an “original dramatic work”. No case was cited to their Lordships in which copyright of the kind claimed had been established.

The protection which copyright gives creates a monopoly and ‘there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world’: Tate v. Fulbrook [1908] 1 K.B. 821, per Farwell J. at page 832. The subject matter of the copyright claimed for the ‘dramatic format’ of ‘Opportunity Knocks’ is conspicuously lacking in certainty. Moreover, it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the ‘format’ of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic.”

In Banner Universal Motion Pictures v Endemol Shine Group [2017] EWHC 2600 (Ch), [2018] ECDR 2, the claim related to a TV game show format called “Minute Winner” which was said to be protected by copyright as a dramatic work. The claimant had devised his show in 2005, but it had not gone into production. He said that the format had been disclosed to the second defendant and was infringed by the defendants’ “Minute to Win It” game show. The claimant’s case was that his format added up to a “distinctive action framework” for a television gameshow which comprised the following “distinctive features”:

“… the use of the title Minute Winner, the phrase ‘one minute to win (something)’, examples of minute-long tasks using ordinary household items capable of being performed and completed in a minute by individuals on camera; set either in a studio or on location; in either case capturing a contestant’s actions and reactions during the attempt of the minute long task; to be broadcast either singly as fillers between feature-length shows or in succession to form a feature length show in its own right; and the use of prizes sponsored by firms in exchange for advertising during the programme.”

It was claimed that this was a sufficient structure to qualify for copyright protection.

Snowden J referred at length to Norowzian and Green, andsaid:

“43 I think that the authorities and commentary to which I have referred above indicate that it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode.

44 I do not need to decide on this interim application the precise conditions that must be satisfied before a television format can be protected as a dramatic work. What I think is apparent from the authorities, however, is that copyright protection will not subsist unless, as a minimum: (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 so as to enable the show to be reproduced in recognisable form.

45 In Green, the majority of the New Zealand Court of Appeal and the Privy Council were not satisfied that those criteria were met on the facts … I think that the Privy Council simply thought that, even considered together, the features were not organised in such a way as to constitute a unified work that could be performed, which is the essence of a dramatic work. Moreover, although Gallen J took a different view of the particular facts of the case, I do not think that he necessarily took a very different view of the legal principles: he spoke of the need for the combination of features to amount to “a recognisable framework which imposed a shape upon the other constituent parts of the show.”

46 In my judgment, tested against any of those requirements, there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify

or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows.”

Counsel for the Claimant in this case submitted that the failure of the claim in Banner did not detract from the practical utility of Snowden J’s test.

Counsel could not identify any UK case in which a claim that a format was protected as a dramatic work had succeeded. Mr Sampson however drew my attention to a decision of the Alberta Court of Queen’s Bench, Hutton v Canadian Broadcasting Corp, from December 1989, where one of the issues was whether the format of a pop music show was protected as a dramatic work. The show followed the broad concept of a number of earlier shows, including the British series Top of the Pops. It had been created by the Claimant and 19 episodes of the show had been co-produced with the defendant. Part of Mr Hutton’s show was scripted, and the scripts for each episode were interchangeable. The “major dramatic conceit” of his show was a “Music Central” sequence in which it appeared that information about the charts was being compiled there and then. Some 3 years afterwards, the defendant aired another pop program which Mr Hutton alleged copied his format, which he said was a dramatic work under the Canadian Copyright Act 1985 which defined a dramatic work as follows:

“‘dramatic work’ includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, in any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character.”

MacCallum J noted that what mattered was whether the arrangement or “acting form” etc gave the work an original character protected by the Act, not the idea behind the form. He found that the format of the Music Central part of Mr Hutton’s show was a protectable dramatic work, by reason of the sufficiency of its “dramatic incident and seminal storyline.” He held that the show:

“tells the story of Mulligan and his two assistants gathering chart information for the countdown. It is a story which is perhaps incidental to the playing of rock videos, but it is the only thing in my view which lends dramatic incident to the programs. By contrast, [the defendants’ show] tells no story at all.”

On the facts, there was no finding of copyright infringement. MacCallum J held that despite the similarity of the idea of the defendant’s shows in terms of setting, themes etc, they were typical of the genre, and the formats of the programs were essentially dissimilar. The dramatic incidents of the claimant’s show which gave it its original character, were altogether lacking in the defendant’s show.

The test being applied in Hutton was not identical to the test I must apply here, nor is this case based upon “dramatic incident.” Further, there was no finding that the whole format of the show was a protectable copyright work. In the circumstances, although I was invited to apply similar reasoning, I find the decision of little help, particularly in contrast to the UK authorities discussed above.

The overall position arising in particular from Green and Banner is helpfully summarised in Copinger at paragraph 2-123 (footnotes omitted):

“In a number of reported cases, attempts to argue that copyright is capable of subsisting in the formats of television shows and other similar programmes have failed. Protection has typically been refused on the grounds that there was insufficient certainty as to the content of the work and that it possessed insufficient unity to be capable of performance. The High Court has however held that it is at least arguable as a matter of concept that such formats can be protected as dramatic works, even though any genuine game show or quiz will include elements of spontaneity and events that change from episode to episode. It is of the essence of a dramatic work that it be a uniform work that could be performed.  At a minimum, two conditions must be satisfied before a format will be protected in this way. First, there must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type. Secondly, those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.^”

The learned authors of Copinger comment in a footnote that the basis for the first condition above (found in paragraph 44 of Banner) “which appears to involve a novelty test, is not clear.” Paragraph 2-123 is an updated version of a paragraph in the 18^th edition of Copinger (current at the date of the trial and relied on by the Claimant) in which it was suggested that “A useful test to determine whether there is a protectable dramatic work is to ask whether, using the written script or other record as a basis, it is possibly (sic) to present a coherent and meaningful show which is capable of being performed.”

In addition, Copinger considers the position where part of a show is improvised, at 2-124 (footnotes again omitted):

“As with a literary work, the idea for a dramatic work is not itself protected by copyright. What is protected is the form in which that idea is expressed. Whilst, as discussed above, a work will only be a dramatic work if it is a work of action capable of being performed before an audience, the performance of any actors must be distinguished from the work. The work may enjoy protection as a dramatic work; the performance of any actors may give rise to quite separate rights under Pt II of the Act. A copyright dramatic work confers on the owner the exclusive rights to do various acts in relation to the work as a whole or a substantial part of it; a qualifying performance confers on the owner of the performers’ right various rights in relation to the performance. The unauthorised copying of a performance of a dramatic work may thus separately infringe the rights of the owners of the copyright and the performers’ right. Again, a person may give a performance which is an ad lib performance. This may either be as part of a work, as where the author has left the performer to improvise without direction from the author, or it may constitute the entire performance. In the former case, the improvisation may be part of the dramatic structure of the work, but what the actor actually does while improvising cannot, it is suggested, be part of the original dramatic work.^”

The Claimant’s counsel identified four "discrete elements" as the hallmark of a format protectable as a dramatic work under the Act, and necessary to produce a work capable of performance. These were, in short, (a) characters with a clear identity who appear repeatedly in each episode, (b) a consistent setting, (c) plots or storylines sufficiently described that each episode be understood and capable of performance and with a consistent narrative framework, episode to episode, and (d) consistency of filmic techniques and editorial style. I did not find this a helpful analysis in this case. First, it does not seem to me that these four features would necessarily create a uniform work that could be performed. Secondly, they are not the same as the eight features relied upon in the Amended Particulars of Claim. Whilst (a), (b) and (d) are essentially the same as some of those features, I struggle to see how (c) is reflected in them. It does not appear to me that (c) reflects the central premise of Shambles, the combination of a sitcom with genuine stand-up comedy, which is said to be unique, distinctive and crucial to giving Shambles a coherent framework, nor does it seem to me that the pleaded features of Shambles identify any plot or storyline. If a plot is necessary to a format before it can be protected as a dramatic work, because otherwise there is nothing to perform, as the Claimant’s counsel suggested, the pleaded format fails this test.

The pleaded claim is to a format which is described as including all of the 8 pleaded features set out above, taken together, and forming a coherent whole. This leads to a difficulty which I have mentioned at paragraph 11 above, arising from a lack of clarity in the Claimant’s case as to when or at what point he says the format/dramatic work was created. The pleaded case refers to both Series of Shambles and does not specify whether the format was said to have been created (and recorded in writing or on film) during or at the end of Series 1, or only during or on completion of Series 2. Certainly, Annex G to the Amended Particulars of Claim, which identified elements of episodes which the Claimant said demonstrated the pleaded features, relied on episodes from both series, as did the Scene Selection document produced by the Claimant following the CMC. In the Claimant’s skeleton argument, it was said that the Claimant’s case was that whilst there was an evolution in quality and development of the show between Series 1 and 2, the underlying format remained the same. In dealing with the Wildseed agreement (discussed below), counsel suggested that all of the key elements of the format were in place before Wildseed was involved. However, counsel also accepted that it is difficult to say when the format came into existence. I conclude, with some hesitation, but by reason of the manner in which the case is pleaded, that the intent was to rely on the format as applied and recorded in both Series.

A further difficulty is that the Claimant does not appear to claim that all of the 8 features were present in all of the episodes, nor do I consider that he could do so. For instance, Greg (described in paragraph 8.6) does not appear in episode 2 of Series 1. The feature of the “constant presence of a variety of characters working behind the scenes … such as agents, producers and talent scouts who come up with bad or surreal ideas for the comedy night that never work ...” (described in paragraph 8.8) is not found in episodes 1, 2 or 6 of Series 1. In episode 1 of Series 2, the character relied on for this feature is another comedian, who Greg has hired as an MC of Harry’s comedy night. He does not come up with any ideas for the comedy night, but is simply a dreadful MC, who is hostile to Harry and behaves inappropriately. In episode 2 of Series 2 this feature is said to relate to a reviewer invited to the venue by Toby. The reviewer is also hostile to Harry, as they have clashed in the past, and he certainly makes no suggestions for the comedy night. Neither the MC nor the reviewer therefore match the feature pleaded at paragraph 8.8. Moreover, the Defendant submitted that where episodes include scenes with Harry’s agent, he did not come up with any ideas for the comedy night nor were ideas implemented which did not work. I think it fair to say, therefore, that there was no constant presence of such characters, as pleaded at paragraph 8.8.

If it is right that the pleaded features are not all present in every episode of the show, then the format cannot be found in every episode, as paragraph 8 claims that “the format of Shambles consists of a number of clearly identifiable features, which, taken together, distinguish it from other shows of a similar type … The Claimant relies on the unique combination of each of the following features …" In my judgment this suggests that the format is not a “work” or does not have a fixed form of expression, or both.

The Defendant submitted that the features as pleaded were unprotectable ideas, which were not clothed with the necessary detail to reflect the creative choices made by the Claimant. The Defendant also suggested that the pleaded format was no more than an artificial creation produced for the purposes of the proceedings, which omits aspects of the characters and events in Shambles, to be able to show similarity at a high level and lead to an inference of copying. The latter point applies in particular to the descriptions given of the main characters in the sitcom. Harry is described as the protagonist, but simply saying that he faces significant challenges in putting on a successful comedy night does not give any idea of the nature of his character, his backstage persona, or his performance as MC and as a comedian. Indeed, in my judgment the features of the format in the Amended Particulars of Claim do not reflect the central premise of Shambles, which is much less the combination of real stand-up comedy with a back-stage sitcom than a sitcom about Harry Deansway’s fictional difficulties in trying to run his comedy nights at the Aces & Eights venue. The formulation of the format does not properly reflect the pivotal role played by Harry in both Series. In my view, the pleaded format fails sufficiently to identify and does not properly or fully express the work in issue, and is, as the Defendant suggested, a construct of features designed for the purposes of this litigation.

Furthermore, this is not a case like Baigent v The Random House Group Ltd [2007] EWCA Civ 247; [2007] F.S.R. 24 where the claimants, who alleged that Mr Dan Brown had infringed their copyright in their book, The Holy Blood & The Holy Grail, relied on alleged copying of the “Central Theme” of their book. The question there was whether The Da Vinci Code infringed the claimants' literary copyright in their book, and no separate copyright was claimed for the Central Theme, which was designed to identify central features of the claimants’ work which it was said could also be found in TheDa Vinci Code. Here, by contrast, the copyright work relied upon is said to be a dramatic work which consists of the features listed under paragraph 8 of the Amended Particulars of Claim. The Claimant pointed to various documents which he had written, for example setting out the "Shambles Philosophy," or setting out basic plotlines for particular episodes, but he did not seek to rely on any copyright in any of those documents. Counsel suggested that these documents could be equated to the screenplays which with the subject matter in Kogan, but even if that is right, which I doubt, they form no part of the dramatic work which is alleged to have been infringed.

Moreover, even if all eight features identified in paragraph 8 of the Amended Particulars of Claim were present in each episode of Shambles, or in the episodes of Series 1 if the format is to be taken as complete at that stage, I consider that the features taken together do not have the necessary qualities to amount to a dramatic work which could be protected as a copyright work. In my judgment, the eight features are not connected with each other in a coherent framework, and they do not set out a formula which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. The pleaded features set outgeneral ideas at a fairly high level of abstraction and in my judgment are inadequate to enable anyone to create, perform or reproduce an episode of Shambles. It is equally plain that the pleaded features of Shambles are not organised into a unified work which could be performed which, as Snowden J said in Banner, is the essence of a dramatic work.

Mr Sampson submitted that Shazam left open the question of whether characters, storylines and an “imaginary world” could, if sufficiently described, enjoy protection as a dramatic work. Whether or not that is right, the description of the features of the show relied upon by the Claimant in this case falls far short of the level of specificity necessary to satisfy such a test. In particular, as I have said, the pleaded features do not adequately describe any of the characters in the show, not even the character of Harry Deansway. He is described only as “A promoter character, Harry, who is the protagonist of the show … .” It does not seem to me that anyone could perform his part based only upon that description, nor produce a show which reflects the fact that all of the episodes of the show centre upon Harry.

No storylines are identified, and the setting of the show and its basic premise of blending fictional scenes with live stand-up are described in terms which are too broad to lead to copyright protection. The format does not indicate how much of any one episode would be sitcom and how much would be stand-up, and in some episodes, as I have explained, the amount of stand-up shown is negligible. If all of the episodes are said to include that basic premise, it is hard to see how the episodes all evidence the existence of the work and delimit the scope of protection.

The filmic style adopted for Shambles was also said to be an essential feature of the framework of the show, but again this feature appears to me to be so loosely described as to be virtually meaningless. Certainly, it is not particularly distinctive.

The Claimant submitted that the unique setting of Shambles, with the combination of comedy sets before a live audience with a behind-the-scenes sitcom, and the character traits of those characters running from episode to episode were crucial factors said to give a coherent and recognisable framework to each episode and series. I accept that the central idea of Shambles was to combine live comedy sets with a behind the scenes sitcom, albeit in many of the episodes there turned out to be remarkably little footage of the comedians on stage. However, I do not accept that either of these features of Shambles (or indeed, those features in combination) give a coherent and recognisable framework to the shows. They are insufficient to do so. The Claimant accepted that the combination of characters and plotlines needed a level of repetition or repeatability carried over coherently from episode to episode in order to establish a protectable format. That does not seem to me to be the case with the pleaded features of Shambles – there is insufficient identification of the attributes of the principal characters and a complete absence of plotline. In my judgment, this does not meet the criteria for copyright protection.

In all the circumstances, I find that the format of Shambles is not a work which is capable of being protected by copyright as a dramatic work.

In case I am wrong on that central point, I will deal with the further issues in the case.