Leanne Oitmaa and Sara Pearson from our Law & Trade Marks team review the decision in Duncan v Australian Broadcasting Corporation [2023] FedCFamC2G 993, which provides an example of two people independently coming up with a similar idea, and how copyright in the works from that idea can play out.
Summary
In this case the applicant, Annie Duncan, claimed that the Australian Broadcasting Corporation (ABC) infringed her copyright in a television show concept. Ms Duncan came up with the idea of a children’s television show featuring a boat named Buster and his best friend, a pelican named Jack, in 2008. The show was called ‘Buster, the Brave Little Wooden Boat’.
The ABC co-developed and ran a show with similar elements called ‘Bubble Bath Bay’ inspired by the works of Gareth Eden-Styche between 2007 and 2011. Ms Duncan brought a claim against the ABC for infringing copyright in her works. Her claim was unsuccessful. The judge found no copying took place and that the ideas weren’t similar enough.
Ms Duncan’s ‘Buster, the Brave Little Wooden Boat’
Ms Duncan’s inspiration for her idea struck on a trip to Scotland when she saw a small wooden boat working through a storm. Ms Duncan created “works” representing this idea being (1) a script proposal (which was submitted to the ABC in 2009 in response to a call out for children’s TV shows); (2) story boards and sample animated scenes (which were submitted to Screen Australia’s Development Department in 2011); and (3) a moving story book (which was broadcast on a community television channel in 2014).
While the works were provided to the ABC, Screen Australia and screened on television, there was no evidence that the relevant people at the ABC had seen any of the works.
Mr Eden-Styche’s ‘Bubble Bath Bay’
Mr Eden-Styche independently came up with idea of a children’s television show, which was eventually named ‘Bubble Bath Bay’. Mr Eden-Styche came up with his idea in late 2002 when working at the Cruising Yacht Club of Australia in Rushcutters Bay (the idea was originally called ‘The Adventures of Bushbutter Bay’). In July 2007, Mr Eden-Styche submitted the Concept to the ABC, assisted by a talent management agency. The idea was initially rejected. Then, in 2011, after further development the ABC agreed to co-develop Mr Eden-Styche’s idea as the basis for a television show. The final idea was detailed in a ‘writer’s bible’ in 2013 which sets out the world, characters, and overall story.
What is protected by copyright?
Under the Copyright Act 1968 (Cth) people have certain rights referred to as ‘copyright’. Copyright does not protect the ideas themselves, but rather how the ideas are expressed, for example the idea of a character is not protected but the drawing of a character is.
One of the rights protected under copyright is the right to reproduce and publish writings, music and art. Only the copyright owner has the right to do these things.[1] Another protected right is the right to copy, screen or broadcast a film to the public.[2] Ms Duncan claimed these rights were breached by the ABC.
When is copyright infringed?
In order for there to have been copyright infringement of Ms Duncan’s works by the ABC, there must have been:
- a sufficient degree of objective similarity between the works (ie a substantial part copied); and
- actual use (or ‘copying’) of the copyright work in developing the ABC show.
In this case, Judge Baird found that there was no evidence that the relevant people from the ABC, or other creators of Bubble Bath Bay, saw Ms Duncan’s works. Accordingly, there was no actual use (or ‘copying’) of Ms Duncan’s copyright works.
Further, the ‘Bubble Bath Bay’ was not seen to be similar enough to ‘Buster, the Brave Little Wooden Boat’. Judge Baird found that the ideas were not objectively similar: “the protagonists and the character line ups differ. They look different, they have different kinds of best friends, and different characters, different relationships, and there are different associations, groupings and arrangements of characters and events”.[3]
Judge Baird considered that Ms Duncan’s “Copyright in the Work [did not give her] a monopoly in the concept of a children’s television series set on the water in a harbour setting, with anthropomorphic boats and other creatures having little adventures.”[4]
In summary, Judge Baird confirmed the legal principle: “There is nothing unlawful in using the ideas in one work as the foundation for the expression of one’s own work expressed by reason of the work, skill, effort and judgment of the author of the contended infringing work.”[5]
Key takeaways
- Copyright does not protect ideas, only the specific expressions of those ideas. Copyright does not prevent independent creation of a similar idea.
- Get advice on protecting your ideas in other ways, such as patents, designs, trade marks or contacts, which can protect against independent creation.
- Record your ideas in writing (by hand or computer) clearly and fully, with appropriate dates.
- Before sharing your ideas, consider entering into a non-disclosure agreement.
Footnotes
[1] Section 31 of the Copyright Act.
[2] Section 86 of the Copyright Act.
[3] Duncan v Australian Broadcasting Corporation [2023] FedCFamC2G 993 at [245].
[4] Ibid at [254].
[5] Ibid at [180]-[181].
