1709 Blog: for all the copyright community

Friday, 5 June 2015

Not a Bog Standard Copyright Case


Thursday 30th April 2015 was a pleasant, sunny day and so not a bad one to sit in the IPEC Small Claims court, listening to a battle between two toilet brushes. No, not a design rights case, but a case about copyright in a yellow toilet brush known as Brush Lee. When you know that the character seems to be a Kung Fu expert, the pun based on the film legend Bruce Lee's name becomes clearer.

The case being heard was Beverley Isaacs v Edward Bignell and Naughty Tortoise Ltd.
 
District Judge Clarke explained about how the proceedings would be conducted, without the need for evidence on oath, and with the judge playing an active role in getting to the essence of the evidence and keeping formalities to a minimum. Once two adjournments, one midway through the morning session, and hour for lunch, were discounted, the actual hearing took around three and a half hours.

Devotees of the Fox Kids TV Channel may be familiar with the Brush Lee character who appeared in various 90 second escapades inserted into the advert breaks between the main programming. We learned that these fillers were called interstitials. Those who are not aficionados of children's television can see an example of these 'interstitials' here.
The case concerned a claim that the likeness of the defendant's Brush Lee character was copied from a drawing by Beverley Isaacs of one of a series of characters created jointly by Ms Isaacs and the TV personality Benjamin Zephaniah, which were intended to form part of an animation series centred on Webster Spider (later to be renamed Rasta Spida), which the authors were jointly developing with Granada TV.

Mr Edward Bignell is the director and sole shareholder of the second defendant Naughty Tortoise Ltd (NTL) but in the late 1990s he was employed by Granada TV, and as such he attended these early meetings between Ms Isaacs, Ben Zephaniah and Granada's head of animation Annie Miles. A development agreement between the creators and Granada TV was draw up and signed on 22 March 1999. There then followed a number of meetings to develop the series concept, including one on 29 March 1999 when Ms Isaacs produced a drawing of a character she called Lu Brush, and it was claimed that a further more detailed drawing of the character was sent to Mr Bignell some days later. The Lu Brush character was visually based on a simple yellow toilet brush figure with oriental eyes and a propensity for kung fu. Following one of these meetings, the participants adjourned to the bar and during the ensuing hospitality, Mr Zephaniah had suggested the name 'Brush Lee' for the character, making a pun on the ever popular Bruce Lee. However while the Rasta Spida idea was developed, the toilet brush character was dropped and did not feature in the later work.

In 2000 Mr Bignell left Granada to set up as a freelance programme consultant using a predecessor company to NTL, Naughty Tortoise Productions Ltd. In September 2001 he was hired in this capacity by his old boss from Granada, Annie Miles, who had by then moved to become managing director of the Fox Kids Channel. Miles and Bignell then discussed a number of ideas for interstitials using characters based on household objects, to be used on the Fox Kids Channel. It was said that these discussions were merely a continuation of ideas about parodies of classic film genres, like westerns and kung fu, which the two had been discussing at Granada prior to the Isaacs/Zephaniah pitch of the Webster Spider idea. Mr Bignell gave evidence about how he, along with a team at Fox, developed a character based on a ninja toilet brush who was locked in battle with his adversary Jackie Chain (a wash basin plug and chain). In essence, cheap household items were bought on the high street and eyes and mouths drawn on plastic were then fixed to them, and the resulting figures were then simply manipulated by hand (as can be seen in the YouTube video link given above), to create the drama.

The defendant's position was that Ms Isaac's and his characters were created independently of each other, and that the choice of name for the Fox Kids Channel character was taken from Mr Zephaniah's suggestion, with the latter's approval. Indeed it was alleged that Mr Zephaniah had been aware of the development work going at Fox Kids and had not objected to it. Mr Zephaniah did not give evidence in person but in his statement, said he could not recall ever having given permission or to having acquiesced to the Brush Lee character being developed by Fox Kids. However neither party contended that the name 'Brush Lee' was subject to copyright.

The claimant spent some time during the hearing itemising the similarities between the two characters, which largely came down to the fact that both featured toilet brushes of a conventional design, used in such a way that the long thin handle was the head and body, and the bristles effectively represented the lower legs. And both were yellow in colour.
Mr Bignell claimed that although the idea was similar, the expression of it was very different. What's more, the defendant claimed that the idea of an animated toilet brush with human features was not at all uncommon in the advertising world or elsewhere.

The 25 short interstitial sequences were broadcast on Fox Kids in 2002, and in 2008 Mr Bignell obtained permission from the Channel to have the IP in the videos assigned to him. The following year, he licensed the rights in the videos to Target Entertainment in Australia, and subsequently, using his NTL company, put DVDs of the series on sale in the UK, along with copies some videos posted on YouTube which were intended to boost sales.

Mr Bignell and Ms Isaacs were the only witnesses to be called. Written statements from a number of other people were relied on by both sides. Mr Bignell's evidence was cross-examined at length, and he came across as someone who, although sure of the rightness of his version of events, often could not recall the details with sufficient clarity to back up his assertions. And although not technically a witness of fact, Mr Bignell's representative, Mr Andrew Baker, was able to assist the court with some additional generic background information about why and when development agreements might be drawn up and what sort of IP they would ordinarily seek to protect. This was based on his experience in the legal department at Granada TV, albeit at a different time to that pertaining to this case.

The hearing involved argument from both sides about the early sequence of events (much of which was disputed) and about the similarities between the works. Further time was spent discussing how the name Brush Lee came about, although the name was not really at issue. This was then followed by argument about whether the claim was time barred, given that the broadcast of the Fox Kids interstitials took place in 2002, which was rebutted by the claimant, who argued that since the DVDs were still on sale, the infringement was still continuing up to the date of the hearing. Lastly there was some discussion about the correct basis for assessing damages, and whether referring to a scale of fees set out in a US publication, The Graphic Artist's Handbook, was appropriate in this case. Understandably District Judge Clarke reserved her judgment, but today this has been handed down. She found in favour of the defendant, on the basis that none of the specific creative elements which Ms Isaacs gave to her character in order to transform it from an ordinary toilet brush into something with human characteristics were copied in Mr Bignell's character. Mr Bignell was awarded costs of £522.30, and the claimant was denied permission to appeal. 


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The Doctor Fun cartoon © David Farley, reproduced here by kind permission of David Farley (dfarley@uchicago.edu)

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