April 8, 2019

The claimant, Happy Camper Productions Ltd, applied to the High Court for an interim injunction to restrain the defendant, the BBC, from broadcasting a comedy drama called “Pitching In”. Happy Camper relied on copyright infringement as the basis of its claim.

Happy Camper claimed copyright in the script of a pilot episode of a comedy drama called “Down the Caravan”, written by one of the two directors of the company, Kay Lockett, the other director being her husband, Jerry Lockett. The pilot film of Ms Lockett’s script was broadcast at various venues in Cardiff in March 2018.

Happy Camper claimed numerous suggested similarities between the two scripts and films, including the location, the premise of the programme and the characters. It alleged that the idea and features of the expression of the idea in its script had been used in the script for the BBC’s film.

Applying the test in relation to the grant of interim injunctions as set out in American Cyanamid Co (No 1) v Ethicon Ltd [1975] AC 396, His Honour Judge Keyser QC found that, on the evidence, Happy Camper had failed to show that there was a serious question to be tried. The facts as to whether copying had taken place were disputed and, although there were some similarities at quite a high level of generality, when considering whether there had been copying of a substantial part of the literary work, “the case does not seem to get off the ground”. In HHJ Keyser’s view, Happy Camper had not shown that it was plausible that there had been any, let alone substantial, copying of the text.

However, even if there were a serious question to be tried, HHJ Keyser said he would still refuse an injunction because damages would be an adequate remedy. Although valuing an infringement of copyright (i.e. assessing the extent, if any, to which the infringement had diminished the value of the copyright) might be a difficult matter, that was not a good reason for holding that damages were not an adequate remedy.

HHJ Keyser added that if he was wrong, i.e. there was a serious question to be tried and damages were not an adequate remedy, he would have to consider the balance of convenience. In his view, the matter lay wholly in the BBC’s favour. Happy Camper’s script was written in 2013 and had had no commercial success until now. There was no indication that it had a real prospect of commercial success. Any harm to its value could be compensated in damages. On the other hand, if an injunction were granted, the BBC, on short notice, would have to pull from its schedule a programme that was listed for broadcast the next day. That had costs implications as well as implications in terms of reputational damage.

HHJ Keyser also noted that the application was “dreadfully late”, as Happy Camper had known about the matter since August 2018. That meant that strong justification, and more than simply commercial damage in respect of copyright to a comedy programme, would be required to grant an injunction. Further, on the question of a cross-undertaking in damages, the BBC’s evidence suggested that it would incur losses of around £130,000, which it would be entitled to be indemnified for if Happy Camper failed at trial. Happy Camper was a dormant company and had no apparent means of paying damages.

Accordingly, the application was dismissed. (Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch) (11 February 2019) — to read the judgment in full, click here).