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Design Rights Infringement Lawyers – The Michael Mitchell and British Broadcasting Corporation Case [2011] EWPCC 42

Two recent interesting cases in the Patents County Court are worth noting by design copyright infringement lawyers because they expand on the issues of: sub-conscious copying; access and similarity, which arise almost routinely in copyright actions. They are Michael Mitchell and British Broadcasting Corporation [2011] EWPCC 42 before His Honour Judge Birss QC and (1) Paul Hodgson (2) Michael Jarvie (Claimants) and (1) Andrew Isaac (2) Notting Hill Studios Ltd (Defendants) before His Honour Judge Birss QC [2011] EWPCC 42. Both actions were for copyright infringement. And in both cases there were litigants in person. Mitchell represented himself and Andrew Isaac represented himself and the other defendant.

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In Mitchell v BBC the facts may be summarised as follows. Mitchell created a group of characters for use in an animated television programme for kids called the Bounce Bunch. He created the first drawings in October 2005. All the other characters were finally developed in June 2007. In October 2007, he sent a proposal to the BBC. The proposal included drawings of all the characters as well as a brief synopsis and a script for the first episode. In May 2008, the BBC turned down the opportunity to commission the programme. However the BBC launched a Kids animated TV show called Kerwhizz in November 2008. Obviously the timeline of events would be crucial but so would the issues of access, sub-conscious copying and similarity.

Similarity –  Mr Mitchell considered that Kerwhizz bore such strong similarities to his characters, the Bounce Bunch, that the onus of proof shifts to the BBC to prove that they did not copy his work.

Access – Mr Mitchell contended that he had published an image of 5 Bounce Bunch characters on his website (deactivated), in 2007 and 1 side view of a character in 2005. The BBC`s case was that the initial pitch for Kerwhixx had been in 2006 and most of the artwork had been completed before Mr Mitchells proposal in 2007. Mr Mitchell then raised a new issue. He contended that an image of his characters were available on various Internet websites since 2004. He also contended that there was a link between Kerwhizz and Bounce Bunch through Blue Zoo, who produced the drawings for Kerwhizz. The link was that there was a University connection between someone who had been shown Mr Mitchell`s drawings in 2004 and someone who worked as an artist for Blue Zoo.

Sub-conscious copying – Mr Mitchell contended that even if the BBC`s artists were not copying his work directly because they had seen his work on the Internet they had been indirectly influenced by it when producing their own drawings.

The BBC denied all the allegations.

Access – Similarities

The Judge held that there was insufficient evidence to prove that the Bounce Bunch Characters were online before 2007 or that any of the other evidence adduced by Mr Mitchel was sufficient to prove access before 2007. However the Judge was satisfied that there were sufficient similarities between the characters in Kerwhizz and the Bounce Bunch which taken with access after 2007 which warranted an explanation. In other words Mr Mitchell may have done enough to shift the onus to the BBC to prove that they had not copied the work. But the Judge was satisfied with the BBC`s explanation of how those similarities occurred. He was satisfied that there was no `deliberate or conscious copying`.


The Judge held that none of the evidence he had heard supported an inference of sub-conscious copying. Of note for design copyright infringement lawyers is that the Court set out the law on sub-conscious copying as stated in Francis Day & Hunter v Bron [1963] 1 Ch 587.

(1) In order to constitute reproduction.. there must be (a) a sufficient degree of objective similarity between the two works, and (b) some causal connection between the claimants and the defendants work.

(2) It is quite irrelevant to inquire whether the defendant was or was not consciously aware of such causal connection.

(3) Where there is a substantial degree of objective similarity, this of itself will afford a prima facie evidence to show that there is a causal connection … at least, it is a circumstance from which the inference may be drawn.

(4) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but it is in no way conclusive.

Therefore it is a question of fact whether the degree of objective similarity proved is sufficient, in all the circumstances of a particular case, to warrant the inference that there is a causal connection between the plaintiffs and the defendants work. Factors include:

The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs` work and 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 … could be due to coincidence, the existence of other influences , and not least the quality of the defendant  own evidence on the presence or otherwise in his mind of the claimants work.

The claimants case for infringement failed.

Digital Copyrights 

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