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Cashback claimant struck out

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

In these days of digital copyright there's nothing like a good old-fashioned "you stole my story" claim to set the pulse racing -- and that was the claim in Obisanya v Ellis and another, a Chancery Division of Mr Justice Henderson on Monday, a decision that has not yet been posted on BAILII but which was picked up smartly by the LexisNexis Butterworths subscription-only service.

Sean Ellis (the first defendant) was a writer and film-maker, the second defendant being a production company that made a short film in 2004 and a feature film two years later (both, it seems, called 'Cashback'), based on Ellis's screenplay. as luck would have it, between 2001 and 2004 Elizabeth Obisanya was working on her own screenplay, initially called 'Cashback, Paper or Plastic' but later shortened to 'Cashback'. Both Obisanya's and Ellis's screenplays and films were romantic comedies and shared the same setting. Obisanya alleged that the defendants' films infringed her copyright. The defendants counterclaimed for an injunction to stop Obisanya alleging they had copied her work, seeking summary judgment on the basis that Obisanya had no reasonable prospect of succeeding at trial and that there was no reason why the claim should continue to a full hearing. In their view the similarities relied on by Obisanya were coincidences stemming from the shared setting; they also relied on the chronology which suggested that Obisanya had not finished writing her screenplay by the time the first short film, on which the feature film was based, was completed.

Henderson J struck out the claim. In his view, given the chronology of events, Obisanya could not reasonably establish that there was any possibility that the defendants had gained access to her screenplay. Any similarities could be explained by the sharing of a commonplace setting. Further, given the nature and extent of Obisanya's allegations, she wound be restrained from making any similar allegations in the future.

The IPKat knows how strong is the attachment that authors and playwrights have for their works, and he is sorry that Ms Obisanya has put herself to so much expense and embarrassment. However, she was a litigant in person and she was seeking damages of Ł16 million -- which suggests that her expectations, both in regard to liability and in regard to quantum, were highly optimistic and could have been tempered by a little professional advice. Merpel says, now what if she had taken an early opportunity to register Cashback as a trade mark for plays, stories and the services relating to their supply ...?

Sean Ellis's Cashback here, reviewed here

Full post as published by IPKat on June 11, 2008 (boomark / email).