Rinkoff v Baby Cow Productions – Format rights

The judge decided that the format for a comedy show called "Shambles" did not qualify for protection as a dramatic work under the Copyright Designs and Patents Act 1988 (CDPA). Additionally, even if the "Shambles" format had qualified as a copyright work, the television show "Live at the Moth Club" (LATMC) did not infringe.

Background

Joshua Rinkoff, a professional comedian, launched a copyright infringement claim regarding the television show "Live at the Moth Club" (LATMC). LATMC was produced by Baby Cow and commissioned episodes were broadcast on the TV channel Dave between December 2022 – January 2023 and made available for streaming on UKTV Play. LATMC was a television show which combined backstage sketch segments with live comedy performances.

Mr. Rinkoff alleged that LATMC infringed copyright in the format of his own show "Shambles" which he created in 2013, which also combined backstage sketch segments with live comedy performances. Mr. Rinkoff in the particulars of claim pleaded that the format of his "Shambles" shows was protected as a dramatic work for the purposes of the CDPA. Furthermore, Mr. Rinkoff claimed the striking similarity between "Shambles" and LATMC could not be explained by coincidence. In particular, Mr Rinkoff claimed that Rupert Majendie (Head of Development at Baby Cow) who knew and had previously been friendly with Mr. Rinkoff (before their relationship had soured) had accessed "Shambles" and copied it.

Was Mr. Rinkoff's format protectable as a copyright work?

Mr. Rinkoff pleaded that the format for "Shambles" shows was a dramatic work. He claimed that the "Shambles" format was a single piece of work which contained eight features which connected together to enable the show to be reproduced in a recognisable form. One feature included "A hapless club owner character, Greg, who owns and runs the dilapidated venue and who tries to help the protagonist but usually makes things worse".

One of the issues the judge found with the argument that copyright subsisted in the "Shambles" format, was that the eight features were not present in each episode. One example of this provided by the judge was that the character of Greg mentioned in the above paragraph did not feature in one of the episodes. Overall, the judge considered that the features submitted did not have the quality to be considered a dramatic work protected by copyright. The eight features relied upon by Mr. Rinkoff were "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 a recognisable form" (the judge cited the New Zealand "Opportunity Knocks" case -  Green v Broadcasting Corporation of New Zealand [1989] RPC 700, Banner Universal Motion Pictures v Endemol Shine Group [2017] EWHC 2600 (Ch) and Copinger and Skone James on Copyright, 19th ed. (paragraph 2-123)). The features were considered too high level and insufficient to create and perform an episode of "Shambles". For example, no storylines were included in the "Shambles" format and the premise of a blending of fictional scenes with live stand-up comedy was considered too broad to be protected by copyright as a dramatic work.

Counsel for the claimant had also relied on the well-known case of Shazam Productions Ltd v Only Fools the Dining Experience Ltd. [2022] EWHC 1379 (IPEC), submitting that Shazam "left open the question of whether characters, storylines and an “imaginary world” could, if sufficiently described, enjoy protection as a dramatic work". The Judge concluded that whether that was correct or not, the description of the features of the show relied upon by the Mr Rinkoff "fell far short of the level of specificity necessary to satisfy such a test.

Infringement

Despite finding that copyright did not subsist in the "Shambles" format the judge still considered the position regarding copying (in case the IPEC decision regarding subsistence was overturned on appeal). The judge dismissed Mr. Rinkoff's arguments regarding unconscious copying and held that any level of similarity was of a high level of generality and the similarity referred to stock comedic devices. For example, the acceptance that competence is rarely funny.    

Comment

It is interesting to note that neither side's counsel was able to point to any successful case law in the UK courts, so we are still in the position that a television format has never been protected successfully as a dramatic work under UK law. That is not to say, however, that it is not possible. For a copyright infringement claim to be successful for a television format as a dramatic work, the original work will need to be more clearly made out so copyright can subsist.  The format will need to consist of "clearly identifiable features which are connected together in a coherent framework, which can be repeatedly applied, so as to enable the show to be reproduced in recognisable form". Furthermore, the allegation of copying would most likely need to be more obvious and more clear-cut than in this scenario.