Deliberate or subconscious copying for BBC's Kerwhizz

In bringing his case before the Court, Mr Michael Mitchell (the claimant, a freelance Hertfordshire based ‘creative’) argued that the BBC’s Kerwhizz characters bore “striking similarities” to his Bounce Bunch drawings, which he had presented to the Corporation in late 2007 as part of a proposal for a new children’s television programme.

In arguing his claim of copyright infringement, Mr Mitchell’s contentions were that the similarities between the Kerwhizz and Bounce Bunch characters:

Could only have arisen as a result of copying (either conscious or subconscious) by the artists working on the project for or on behalf of the BBC.

Deliberate copying

Supporting this allegation, Mr Mitchell submitted that the BBC had access to his drawings by virtue of 1) his 2007 pitch to the Corporation and 2) the online availability of the Bounce Bunch characters dating back to 2004. Citing the case of Designers Guild v Russell Williams [2000] 1 WLR 2416, Mr Mitchell argued that it was for the BBC to prove how the Kerwhizz characters were produced.

Judge Birss QC agreed that the similarities between the two works were great enough to require the BBC to explain the process involved in the development of the Kerwhizz characters. He reasoned that this was necessary owing to the “overall similarities”, for which he cited the combination of the characters’ “armour with helmets and microphones… colour scheme and ethnic mixture” as being significant. In addition, the judge also considered that a particular element which stood out was the blond quiff feature, which is a common element in the blue suited characters, Charlie and Twist.

Providing the Court with evidence from a number of witnesses, the BBC was successful in proving that the characters were not the result of deliberate copying, with Judge Birss QC holding that the accounts given by the witnesses left “no room for a case of deliberate or conscious copying”. They largely did this by satisfying the Court that the persons responsible for the development of Kerwhizz worked within an entirely separate department of the BBC and had not at any time had access to the claimant’s drawings, which had been received and filed by the Corporation in 2007.

Subconscious copying

In relation to Mr Mitchell’s alternative argument (that his Bounce Bunch characters were subconsciously copied by the BBC), Judge Birss QC looked at three elements in consideration. The elements to which the judge gave his attention were:

1. the degree of familiarity with the Bounce Bunch,
2. the character of the work, and
3. the degree of objective similarity between the two works in dispute.

Regarding the first element, Judge Birss QC held that the claimant had presented no evidence which supported any finding of the BBC’s familiarity with the Bounce Bunch characters. As the case involved Mr Mitchell’s purported publication of the drawings on the internet, he added that in the absence of evidence, it is impossible to say whether a person has been subconsciously influenced by materials appearing online and to hold otherwise would be wrong.

On the second point, Judge Birss QC considered that the characters were not especially memorable given the rather generic nature of many of the drawings’ design features. As a result, he thought it was unlikely that a designer of such artworks would have retained a subconscious memory of the Bounce Bunch.

Finally, in relation to the third point, Judge Birss QC analysed various aspects of the two works (colour, gender, attire and ethnic mix amongst others) and concluded that many of the features were “commonplace”. It was therefore his opinion that any objective similarities were merely coincidental.

In rejecting the allegations of both conscious and subconscious copying (and in dismissing the action), it was concluded that the Kerwhizz characters were the product of independent artistic creativity and that no connection with the Bounce Bunch had been established.

Useful links

Full text of decision Mitchell v BBC