Wednesday, 21 December 2011

Mitchell v British Broadcasting Corporation (BBC) [2011] EWPCC 42

Mitchell v British Broadcasting Corporation [2011] EWPCC 42 (21 December 2011) shows a couple of things that we knew already, though until someone like HHJ Birss QC tells us that they apply to the facts of a particular case there is enough uncertainty to justify playing the forensic lottery. Independent creation is always a defence to a copyright infringement action, and subconscious copying is extremely difficult to prove. In fact, I'd say impossible, except with the assistance of presumptions, which didn't help here. Mr Mitchell thought that the BBC had ripped off an idea he had for an animated TV series for children, and, more importantly because copyright could protect them, a group of characters he devised for it. 147 paragraphs later the judge held that they hadn't.

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