IPEC decision: Joshua Rinkoff v Baby Cow Productions Ltd

We explore the recent case before the Intellectual Property Enterprise Court of Joshua Rinkoff v Baby Cow Productions Ltd, giving background to the dispute and the allegation and defence issues considered by the judge, and provide some practical takeaways.

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In this recent case before the Intellectual Property Enterprise Court, the judge held that the format of “Shambles”, a series of comedy shows, was not a dramatic work capable of copyright protection under the Copyright Designs and Patents Act 1988. Even if copyright had been found to subsist, the judge would have found that it was not infringed by the Defendant.

The judgment is noteworthy as it highlights the challenges of protecting TV formats in the UK.

Background to the dispute

The Claimant, Joshua Rinkoff, is a writer, director and comedian who performs under the name Harry Deansway. He claimed to own the copyright in the format of two series of comedy shows called “Shambles” which he described as “a sitcom series, centred around a live comedy night”. His intention with the shows was to present stand-up comedy in an innovative way, combining scenes of live comedy with behind-the-scenes narrative in the form of a sitcom. The sitcom aspect revolves around Mr Rinkoff, playing himself as Harry Deansway, a struggling professional comedian, and his interactions with key characters, including Greg, the hapless club owner, and Joe, his incompetent assistant or runner. The shows are largely unscripted.

The Defendant, Baby Cow Productions Ltd, is a well-known TV production company which produced “Live at the Moth Club” (“LATMC”), a five-episode series broadcast on the television channel Dave between December 2022 and January 2023, later made available for streaming on UKTV Play. Each episode of LATMC combines comedic backstage moments with longer stand-up excerpts while following Ellen, a struggling comedy booker who interacts deadpan with the camera, and George, the club’s inept manager. The show features a chaotic venue with incompetent staff, recurring comedic characters and ongoing backstage storylines, all set in the rundown Moth Club, which still attracts a sizable live audience. Unlike “Shambles”, LATMC is scripted and its episodes are twice as long.

The driving force behind LATMC was Rupert Majendie who, like the Claimant, has had a long career in comedy and has run live comedy gigs, including at the Moth Club in Hackney. Mr Rinkoff and Mr Majendie have known each other for years, having worked in the same industry; they were once friends but fell out in 2012.

Issues considered by the judge

Allegations

The Claimant argued that the format of the two series of “Shambles” was protected by copyright as a single dramatic work, comprising a set of clearly identifiable features that were interconnected and formed a coherent framework. The Claimant averred that this framework could be repeatedly applied so as to enable the show to be reproduced in a recognisable form. The Claimant relied on the unique combination of each of the following features:

1. A setting in a comedy club struggling to make ends meet based in a real-world venue;
2. The blending of fictional scenes involving situation comedy and actual stand-up performances, giving rise to a unique hybrid of sitcom and comedy entertainment;
3. The staging of interactions between the fictional characters of the sitcom scenes and the stand-up comedians to create a blend of the fictional and the documentary;
4. The use of techniques of cinema verité, including handheld camera footage, the use of natural lighting, the use of dialogue that appears unscripted and improvised, the staging of scenes in a fly-on-the-wall manner and the use of a real-life audience at a real comedy venue to give the scenes a sense of realism and add to the dry humour of the series;
5. A promoter character, Harry, who is the protagonist of the show and faces challenges in putting on a successful comedy night;
6. 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;
7. An intern character who likewise acts with good intentions but often makes things worse for the protagonist;
8. The constant presence of industry characters working behind the scenes including agents, producers and talent scouts who come up with bad ideas for the comedy night.

The Claimant’s claim was that the Defendant infringed his copyright by copying the format of “Shambles” and by communicating its series LATMC to the public. He claimed that the number of similarities between the shows, including the combination of “a narrative sitcom with a live stand-up show case”, the similarities of features of the characters and plotlines, and the fact that Mr Majendie was “clearly familiar” with “Shambles” led to an inescapable conclusion of copying.

Defences

The Defendant denied that the format relied upon by Mr Rinkoff was protectable as a dramatic work, arguing that it was neither designed nor capable of being performed. Additionally, the Defendant contended that the format of the two series of “Shambles” was not identifiable with sufficient precision and objectivity to qualify for copyright protection. It further argued 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”. In any event, the Defendant denied any copying.

The judge had to determine, amongst other things, whether the format of “Shambles” attracted copyright protection as a dramatic work, whether the Claimant was the owner of that copyright, and whether the Defendant had infringed it.

Decision

The judge found that the format of “Shambles” was not a work capable of copyright protection as a dramatic work. This was because the pleaded claim referred to a format comprising eight features that, taken together, were said to form a coherent whole. However, since these features were not all present in every episode of the show, the format itself could not be found in each episode.

Further, the judge concluded that even if all eight features were consistently present, they did not, when combined, amount to a dramatic work. They were not connected with each other in a coherent framework, or set out a formula capable of repeated application to enable the creation, reproduction or performance of an episode of “Shambles”, which is the essence of a dramatic work. The claimant also failed to provide sufficient descriptions of key characters, including the protagonist Harry, making it impossible for anyone to play his role based on the descriptions given.

The judge also held that that the pleaded format failed sufficiently to identify, properly express or fully define the work in question, and appeared to be a construct of features designed for the purposes of litigation. In particular, the judge thought that the features of the format claimed by Mr Rinkoff did not reflect the central premise of “Shambles”, which was much less about combining real stand-up comedy with a backstage sitcom and more about a sitcom depicting Harry Deansway’s fictional difficulties in running his comedy nights.

Even if the judge had found that copyright subsisted in the format, she would in any event have concluded that it was not infringed by the Defendant. Although the underlying idea for the shows was the same, the similarities identified by the Claimant were at an extremely high level of generality and insufficient to support an inference that LATMC was copied from “Shambles”.

Practical takeaways

The following practical points can be taken from this decision:

1. The case highlights the challenges of claiming copyright protection for a TV format, as no Claimants in the UK have yet successfully met the legal test. The bar is set quite high, requiring the Claimant to demonstrate that their format comprises a set of clearly identified features which, taken together, distinguish the show from other shows of its kind. Additionally, these features must form a coherent framework which can be repeatedly applied, allowing the show to be reproduced or performed.
2. The judgment also serves as a reminder that an idea for a dramatic work, in itself, is not protectable. To secure protection, the Claimant must clothe the idea with sufficient detail to reflect their creative choices and express it in a concrete form. Relying on features or elements of the format that set out only general ideas at a high level of abstraction, as was the case here, will not satisfy the test.
3. In this case, the Claimant put forward an argument that Shazam Productions Ltd v Only Fools the Dining Experience Ltd. [2022] EWHC 1379 (IPEC) 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 on by the Claimant “fell far short of the level of specificity required to meet such a test”. We are yet to see, therefore, whether future cases will clarify this issue and establish a more definitive threshold for protection of these elements as dramatic works.

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This is for general information only and does not constitute legal advice. Should you require advice on this or any other topic then please contact hlk@hlk-ip.com or your usual HLK adviser.