“8 … the format of Shambles consists of a number of clearly identifiable features, which, taken together, distinguish it from other shows of a similar type. Those features are connected together in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. In support of the foregoing, the Claimant relies on the unique combination of each of the following features, giving rise to a series with an idiosyncratic tone and/or distinctive plots not seen in other sitcoms: 8.1. A setting in a comedy club struggling to make ends meet based in a real-world venue which is not a full-time purpose built comedy club; 8.2. The blending of fictional scenes involving situation comedy, on the one hand, and actual stand-up performances by both up-and-coming acts and established names filmed in front of a real audience at the club, on the other, giving rise to a unique hybrid of sitcom and comedy entertainment; 8.3. The staging of interactions between the fictional characters of the sitcom scenes and inter alia the stand-up comedians of the live performance scenes to create a unique blend of the fictional and the documentary, including interactions between the fictional characters and the stand-up comedians, and/or interactions between the fictional characters and real audience members, …; 8.4 The use of techniques of cinema verité techniques including handheld camera footage, the use of natural lighting, the use of dialogue that appears to be unscripted and improvised, the staging of scenes in a fly-on-the-wall manner in which action unfolds in front of the camera in a manner that appears un-staged and natural, and the use of what appears to be a real-life audience at a real comedy venue to imbue all the scenes with a sense of realism and authenticity but also to add to the general dry and deadpan humour of the series; 8.5. A promoter character, Harry, who is the protagonist of the show and faces significant challenges in putting on a successful comedy night, …; 8.6 A hapless club owner character, Greg, who owns and runs the dilapidated venue and who tries to help the protagonist but usually makes things worse, …; 8.7. An intern character and junior member of the team running the comedy club (named Joe in the First Season and Toby in the Second Season), who likewise acts with good intentions but often just makes things worse for the protagonist, …; 8.8 The constant presence of a variety of industry characters working behind the scenes in the comedy industry, including such as agents, producers and talent scouts, who come up with bad or surreal ideas for the comedy night that never work, ...” 8.1. A setting in a comedy club struggling to make ends meet based in a real-world venue which is not a full-time purpose built comedy club; 8.2. The blending of fictional scenes involving situation comedy, on the one hand, and actual stand-up performances by both up-and-coming acts and established names filmed in front of a real audience at the club, on the other, giving rise to a unique hybrid of sitcom and comedy entertainment; 8.3. The staging of interactions between the fictional characters of the sitcom scenes and inter alia the stand-up comedians of the live performance scenes to create a unique blend of the fictional and the documentary, including interactions between the fictional characters and the stand-up comedians, and/or interactions between the fictional characters and real audience members, …; 8.4 The use of techniques of cinema verité techniques including handheld camera footage, the use of natural lighting, the use of dialogue that appears to be unscripted and improvised, the staging of scenes in a fly-on-the-wall manner in which action unfolds in front of the camera in a manner that appears un-staged and natural, and the use of what appears to be a real-life audience at a real comedy venue to imbue all the scenes with a sense of realism and authenticity but also to add to the general dry and deadpan humour of the series; 8.5. A promoter character, Harry, who is the protagonist of the show and faces significant challenges in putting on a successful comedy night, …; 8.6 A hapless club owner character, Greg, who owns and runs the dilapidated venue and who tries to help the protagonist but usually makes things worse, …; 8.7. An intern character and junior member of the team running the comedy club (named Joe in the First Season and Toby in the Second Season), who likewise acts with good intentions but often just makes things worse for the protagonist, …; 8.8 The constant presence of a variety of industry characters working behind the scenes in the comedy industry, including such as agents, producers and talent scouts, who come up with bad or surreal ideas for the comedy night that never work, ...”
“What to film Narrative of the night Pre-planned situations taking place around the venue. Some of the venue is quite dark so will need lighting Dressing room CCTV style footage of the dressing room. Two cameras must be running from 530 until the end of the night to capture all the action in real-time. … The dressing room is small and dark. The cameras must be totally inconspicuous. The show This is a fully functioning real live night with paying customers. We would like the show captured in real-time to set up the atmosphere of the night … Performers Film the performers we will use a snippet of every acts slot in the final edit. If the act allows it we will use their whole set. Film all the hosting of Harry Deansway as there will be some narrative stuff for the show that needs to be captured.”
“SHAMBLES PHILOSOPHY We need to approach it like we are filming a documentary. The idea is to give the audience the authentic feeling that they are behind the at a real comedy club. I want the audience to suspend disbelief on a different level to Curb and The Thick Of It. The way to achieve this is to create an actual reality and immerse instinctual actors and filmmakers in that world capturing what is actually happening rather than creating an imitation of that reality ourselves. STRONG FRAMEWORK NOT RIGID INSTRUCTIONS We have created a strong framework through plot points and character development now put the talented people we’ve hired in those circumstances and what they come up with instead of rigid instructions on what we want them to do or what we think will happen … INSTINCTUAL I want actors to have an instinctual reaction to what is happening. I think this way you get more genuine reactions and interactions well the odd surprise. Same with camera crew they need to be following the action it’s happening. All the main cast have performed live comedy for years so are able to act on their wits based on what is going on around them. … EMBRACE CHAOS I know this must be worrying to hear but capturing actual chaos is going to give the footage an attitude and authenticity that you would not get if you sat down and tried to write it. This is why we have to film scenes at the actual night.”
“JOE HAS TAKEN THE INITIATIVE AND BOOKED A REVIEWER IN FOR THE NIGHT. UNBEKNOWNST TO THEM HARRY HAS HAD A MASSIVE FALLING OUT WITH THE REVIEWER. AFTER SOME DISCUSSION HARRY STORMS OUT AS HE BELIEVES THE REVIEWER TO BE CORRUPT. GREG TELLS JOE NOT TO WORRY AS THEY ARE GOING TO GIVE THE REVIEWER VIP TREATMENT SO THEY WILL DEFINITELY GET A GOOD REVIEW DOORS OPEN [GREG AND JOE ARE SITTING ON THE DOOR ANXIOUSLY AWAITING THE REVIEWER] REVIEWER TURNS UP, GREG COMES ACROSS AS THOUGH HE IS BRIBING HIM WITH DRINKS AND JOE LETS SLIP HOW IMPORTANT A GOOD REVIEW IS, EVERYTHING THEY SAY TO REVIEWER ANTAGONISES HIM AND JUST DIGS A DEEPER HOLE. … JOE BREAKS THE NEWS THAT ONE OF THE CONDITIONS OF THE REVIEW IS THAT HARRY APOLOGISES. HARRIS IS THERE IS NO WAY THAT IS HAPPENING. GREG GIVES HIM AN ULTIMATUM … [HARRY AND LEX ARE IN THE AUDITORIUM] HARRY IS ASKING LEX TO STEAL THE REVIEWERS NOTEBOOK SO HE CAN CONFIRM HIS SUSPICIONS THAT A BAD REVIEW WAS GOING TO BE WRITTEN ANYWAY. SHE'LL DO IT FOR MONEY SHE SAYS. HE BORROWS IT OFF JOE AS HE WALKS PAST WITH NO INTENTION TO EVER PAY HIM BACK …”
“our own low budget - home- made version of Saturday Night Live. It comes “live” from the Moth Club TV Studio every week … it is more anarchic and raw than SNL. Part-scripted, part improvised … The Moth Club is the setting for the show. It’s an old working men’s club that has seen better days … As we get to know the show … we also get familiar with the mechanics and working of the show backstage – for example Liam Williams will play an irate Studio Cameraman …. We may often see the angry Vision mixer barking strange orders from the Gallery… We have guests each week … with comedians playing realistic but bizarre character guests. For example, Tim Key arrives … to fix the plumbing … The show will be written and performed in a week. It will give the show an unprecious, loose and exciting style … The show has no repeated format. Each week has its own distinct feel…”
“In the summer of 2022, DAVE sent a documentary crew to capture life on and off stage at the Moth Club’s alternative comedy night in Hackney, East London.”
“The 1988 Act continues the general approach of the earlier Acts in that, unlike the cases of literary and musical works, it does not attempt a comprehensive definition of a dramatic work, merely stating that it includes a work of dance or mime. It also includes plays, screenplay and scripts for TV shows (at least when intended to be performed live and recorded before an audience). Although it is expressly provided that a literary work cannot be a dramatic work, there is no express exclusion, unlike in the case of the 1956 Act, of the possibility of a film being a dramatic work. ... As to what comes within the general description of “dramatic work”, the expression is at large and should therefore be given its natural and ordinary meaning, which is that it is a work of action, with or without words or music, which is capable of being performed before an audience. This definition brings out the point that a distinguishing characteristic of a dramatic work is that it must be capable of being performed …”
“94. Turning to the principles which govern copyright protection, these derive partly from English case law, but also from international treaties which have shaped the UK copyright regime, as well as EU law through Directive 2001/29/EC (“the InfoSoc Directive”). This part of EU law remains a retained part of UK law. 95. In terms of what is protected by copyright, the first principle to draw out is the general principle that copyright arises only in the expression of a work, and does not arise in ideas themselves. 96. This distinction was explained by Lord Hoffmann in his speech in the House of Lords in Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416, at 2423A-D. “My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co v Lawrence & Co (1890) 25 Q.B.D. 99 is a well-known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff’s work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author’s skill and labour as to attract copyright protection.” 97. It will be noted that Lord Hoffmann identified two propositions in this extract from his speech. So far as the first proposition is concerned, ideas of a non-literary kind, such as matters of historical fact or technical information cannot be subject to copyright protection. As Mummery LJ explained in Baigent v Random House Group Ltd[2007] EWCA Civ 247 ; [2008] E.M.L.R. 7; [2007] F.S.R. 24, at [146]: “It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work.” 98. Turning to the second proposition, ideas of an artistic or literary nature are not necessarily subject to copyright protection. This principle was usefully explained by Laddie J, in IPC Media Ltd v Highbury Leisure Publishing Ltd (No.2)[2004] EWHC 2985 (Ch) ; [2005] F.S.R. 20, at [14]: “The need to prove copying involves showing a design nexus between the defendant’s and the claimant’s works. However it is a mistake to believe that any nexus will do. The law of copyright has never gone as far as to protect general themes, styles or ideas. Monet, like those before him, acquired no right to prevent others from painting flowers or even water lilies or, to take an example referred to by Mr Howe, Georges Seurat would not have obtained, through copyright, the right to prevent others from painting in a pointillist style. Even someone who is inspired by Monet to paint water lilies or by Seurat to paint using coloured dots would not infringe copyright. Such general concepts are not put out of bounds to others by the law of copyright. Needless to say, it is impossible to define the boundary between mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other. Judge Learned Hand in Nichols v Universal Pictures Co 45 F 2nd 119 (2nd Cir. 1930) said that wherever the line is drawn will seem arbitrary. He also said: “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.”
“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’, to which, apart from their expression, his property is never extended.”
“Copyright, of course, does not subsist in mere ideas, but in their expression. That proposition is a well-established one in English law, and is now also to be found in a number of international treaties and EU Directives: see art.9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”) and art.2 of the WIPO Copyright Treaty. The ideas/expression dichotomy has, however, been described as “notoriously slippery” … A mere idea, stripped of any context, is of course not the subject of copyright. Jacob J put it in this way in IBCOS Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] F.S.R. 275 at p.291: “The true position is that where an ‘idea’ is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the ‘idea’ is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the ‘idea’) of a novel or play can certainly infringe– if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between ‘idea’ and ‘expression’): ‘Nobody has been able to fix that boundary and nobody ever can’.”” “The true position is that where an ‘idea’ is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the ‘idea’ is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the ‘idea’) of a novel or play can certainly infringe– if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between ‘idea’ and ‘expression’): ‘Nobody has been able to fix that boundary and nobody ever can’.””
“The reasons for this principle are practical. Since copyright is a form of monopoly in relation to the subject matter which is protected, there must be certainty as to what that subject matter is. This is necessary so as to be able both to prove the existence of the work and to establish what the work consists of, so that it can be judged whether the work has been copied or otherwise infringed. Fixation also provides a limit to the monopoly, ensuring that the protection accorded to the work does not extend beyond the expression of the work to the ideas or information contained or represented in it. This is necessary in holding a balance between the author’s interests and society’s interests.”
“27. Under Article 2(a) of Directive 2001/29, Member States are required to provide that authors have the exclusive right to authorise or prohibit reproduction of their works. 28. The term 'work' referred to by that provision is also to be found in Article 3(1) and Article 4(1) of Directive 2001/29, on the exclusive rights granted to the author of a work with respect to its communication to the public and its distribution, and in Articles 5, 6 and 7 of that directive, the first of those provisions concerning the exceptions or limitations that may be applied to those exclusive rights, and the latter two provisions concerning the technological measures and information measures that ensure the protection of those exclusive rights. 29. The concept of 'work' that is the subject of all those provisions constitutes, as is clear from the Court's settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation (see, to that effect, judgments of16 July 2009 , Infopaq International, C-5/08, EU:C:2009:465, paragraphs 37 and 39, and of13 November 2018 , Levola Hengelo, C-310/17, EU:C:2018:899, paragraphs 33 and 35 to 37 and the case-law cited).”
“In my judgment a film can be a dramatic work for the purposes of the Act. The definition of that expression being at large, it must be given its natural and ordinary meaning. We were referred to several dictionary and textbook definitions. My own, substantially a distilled synthesis of those which have gone before, would be this: a dramatic work is a work of action, with or without words or music, which is capable of being performed before an audience.”
“In the case of dramatic works which are written or otherwise recorded in words, if the language itself has been copied, no special considerations apply. However, a basic distinction between literary works and dramatic works is that the choice of dramatic incident and the arrangement of situation and plot may constitute, to a much greater extent, the real value of a dramatic work. ... It should be remembered that dramatic works include not only plays, screenplaysand scripts for TV shows (at least when intended to be performed live and recorded before an audience) … and that they may also take the form of a (cinematograph) film or audiovisual work.”
“If the combination of material upon which the person seeking protection relies has a recognisable framework or structure and that framework is such as to impose a shape upon the other constituent parts of the show produced within it, then I should not have thought it contrary to principle to regards it as an original literary or dramatic work for the purposes of the [New Zealand Copyright Act 1962 ].”
“It is stretching the original use of the word “format” a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were “structure” or “package”
“… the use of the title Minute Winner, the phrase ‘one minute to win (something)’, examples of minute-long tasks using ordinary household items capable of being performed and completed in a minute by individuals on camera; set either in a studio or on location; in either case capturing a contestant’s actions and reactions during the attempt of the minute long task; to be broadcast either singly as fillers between feature-length shows or in succession to form a feature length show in its own right; and the use of prizes sponsored by firms in exchange for advertising during the programme.”
“43 I think that the authorities and commentary to which I have referred above indicate that it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode. 44 I do not need to decide on this interim application the precise conditions that must be satisfied before a television format can be protected as a dramatic work. What I think is apparent from the authorities, however, is that copyright protection will not subsist unless, as a minimum: (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. 45 In Green, the majority of the New Zealand Court of Appeal and the Privy Council were not satisfied that those criteria were met on the facts … I think that the Privy Council simply thought that, even considered together, the features were not organised in such a way as to constitute a unified work that could be performed, which is the essence of a dramatic work. Moreover, although Gallen J took a different view of the particular facts of the case, I do not think that he necessarily took a very different view of the legal principles: he spoke of the need for the combination of features to amount to “a recognisable framework which imposed a shape upon the other constituent parts of the show.” 46 In my judgment, tested against any of those requirements, there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows.”
“‘dramatic work’ includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, in any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character.”
“tells the story of Mulligan and his two assistants gathering chart information for the countdown. It is a story which is perhaps incidental to the playing of rock videos, but it is the only thing in my view which lends dramatic incident to the programs. By contrast, [the defendants’ show] tells no story at all.”
“In a number of reported cases, attempts to argue that copyright is capable of subsisting in the formats of television shows and other similar programmes have failed. Protection has typically been refused on the grounds that there was insufficient certainty as to the content of the work and that it possessed insufficient unity to be capable of performance. The High Court has however held that it is at least arguable as a matter of concept that such formats can be protected as dramatic works, even though any genuine game show or quiz will include elements of spontaneity and events that change from episode to episode. It is of the essence of a dramatic work that it be a uniform work that could be performed. At a minimum, two conditions must be satisfied before a format will be protected in this way. First, there must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type. Secondly, those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.”
“As with a literary work, the idea for a dramatic work is not itself protected by copyright. What is protected is the form in which that idea is expressed. Whilst, as discussed above, a work will only be a dramatic work if it is a work of action capable of being performed before an audience, the performance of any actors must be distinguished from the work. The work may enjoy protection as a dramatic work; the performance of any actors may give rise to quite separate rights under Pt II of the Act. A copyright dramatic work confers on the owner the exclusive rights to do various acts in relation to the work as a whole or a substantial part of it; a qualifying performance confers on the owner of the performers’ right various rights in relation to the performance. The unauthorised copying of a performance of a dramatic work may thus separately infringe the rights of the owners of the copyright and the performers’ right. Again, a person may give a performance which is an ad lib performance. This may either be as part of a work, as where the author has left the performer to improvise without direction from the author, or it may constitute the entire performance. In the former case, the improvisation may be part of the dramatic structure of the work, but what the actor actually does while improvising cannot, it is suggested, be part of the original dramatic work.”
“21. To amount to an infringement, however, the copying must be of either the original work or a “substantial part” of it: s.16(3)(a) of CDPA. This is a qualitative, not quantitative, question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work: Newspaper Licensing Agency Ltd v Meltwater Holding BV[2011] EWCA Civ 890 , at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] E.C.D.R. 16; [2010] F.S.R. 20. The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant’s copyright work (or a substantial part of it): Mitchell v BBC [2011] EWPCC 42, per HHJ Birss QC at [28]-[29]. … 24. While the legal burden rests with the person alleging infringement, in the case of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. There was some debate as to whether what was required was proof of access, or proof of the possibility of access. 25. The weight of authority supports the former: see, for example, Designers Guild (above), per Lord Millett at p.2425E; Baigent v Random House[2007] EWCA Civ 247 ; [2007] F.S.R. 24 at [4], although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. … 26. Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it. 27. The leading case on subconscious copying is Francis Day & Hunter v Bron (above), in which the Court of Appeal established that, although it was possible to demonstrate that a person had infringed copyright without intending to do so, it was nevertheless necessary to establish “proof of familiarity” with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work … 28. Whether there has been subconscious copying is a question of fact to be determined on the basis of all the evidence (and does not rest on the shifting of an evidential burden: see Mitchell v BBC (above) at [39]). There will rarely, if ever, be direct evidence of subconscious copying, so it is necessary – as with any issue where direct evidence is lacking – to reach a conclusion based on inferences from other evidence. The following direction which the trial judge, Wilberforce J, had given himself was approved by the Court of Appeal in Francis Day (at pp.614-615): “The final question to be resolved is whether the plaintiffs’ work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs’ work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants’ work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer’s own evidence on the presence or otherwise in his mind of the plaintiffs’ work.”” a defendant has taken that which conferred originality on the claimant’s copyright where direct evidence is lacking – to reach a conclusion based on inferences from other evidence. The following direction which the trial judge, Wilberforce J, had “The final question to be resolved is whether the plaintiffs’ work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs’ work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants’ work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer’s own evidence on the presence or otherwise in his mind of the plaintiffs’ work.””