UK: Subconscious Copying And Copyright: Court Gives Helpful Guidance

Last Updated: 23 May 2012
Article by Nigel Adams

The story goes as follows: the creator of a set of characters for a children's TV programme sends his ideas to a broadcaster hoping to spark some interest. The broadcaster rejects the characters before televising a programme containing suspiciously similar characters.  The designer then sues the broadcaster for copyright infringement.  These are the basic facts of the recent case of Mitchell v BBC, a case which was transferred from the High Court to the Patents Court.

In essence, Mr Mitchell's case was that the BBC must have copied his work - whether consciously or subconsciously because:

  1. the BBC had access to his designs; and 
  2. the similarity between the two sets of designs was striking.

However, the BBC denied any copying.  It questioned the extent to which it had access to Mr Mitchell's work, the extent of the alleged similarities and also (crucially) the BBC asserted that it had come up with its own designs wholly independently of Mr Mitchell. 

Conscious copying

The Judge looked first at whether there had been conscious copying.  He found that there was a possibility of access to Mr Mitchell's work by the BBC and that there were similarities between the competing designs.  When taken together, the Judge felt that these two facts shifted the onus to the BBC to explain how it had come up with its designs and carefully examined the BBC's evidence that it had indeed created its designs independently.  After examining the evidence the Judge found that none of the BBC team had any real awareness of Mr Mitchell's designs and so he concluded that there had been no deliberate copying by the BBC staff. 

Subconscious copying

The Judge then moved on to examine the allegation that  there must have been subconscious copying by the BBC.

He observed that no creative person could ever positively state that they had not been subconsciously influenced by something. This is clearly correct since how can anyone truthfully say they have not been influenced by something which they cannot be consciously aware of?   

The unfortunate consequence of this was that the Judge felt that none of the evidence given by the BBC staff could wholly exclude the possibility of subconscious copying.  In the circumstances the Judge felt he had to re-examine the BBC's evidence and the competing designs to determine for himself if there had been any subconscious copying.  The Judge carried out this exercise by reference to the following criteria:

  • Degree of familiarity

The Judge felt that the BBC staff had to have  more than mere access to Mr Mitchell's work – instead they had to have had some degree of familiarity with Mr Mitchell's designs.  In this case the BBC staff had no real familiarity with Mr Mitchell's creations which reduced the probability of any subconscious copying.

  • Character of the work

The Judge made an assessment of whether Mr Mitchell's work had any qualities which made it particularly memorable.  Mr Mitchell's designs were simple, generic and not particularly memorable.  This also reduced the likelihood of any subconscious copying by the BBC.    

Objective similarity

Finally, the Judge made an assessment of whether the similarities between the two competing works were the result of copying or coincidence.  Although there had been enough similarity between the two works to shift the burden of proof to the BBC to explain how it had come up with its designs, this did not of itself support Mr Mitchell's case of subconscious copying.  Instead a full examination of all the alleged similarities was needed.

After his analysis of all of the various similarities, the Judge decided that although there were similarities between the two works, they were mostly at a high level of generality and did not support a finding of subconscious copying.

The Judge therefore dismissed Mr Mitchell's claim.


Mitchell v BBC sets out useful guidance on when an inference of copying might be made out and highlights the risks faced by claimants who advance a breach of copyright claim based on subconscious copying.  Such cases are difficult for Judges to deal with due to the indirect nature of the evidence and few such cases succeed.  

Invariably claimants in this sort of situation will be advancing a similar argument: the defendant had access to the claimant's work, there are similarities between the competing works, therefore there must have been copying.  Before advancing such arguments claimants should take advantage of the modern "cards on the table" approach to litigation and gain as much of an understanding as possible of the defendant's position and evidence before litigation commences.  This should enable a prospective claimant to compare the competing works by reference to the Judge's three criteria (degree of familiarity, character of the work and objective similarity) to aid any decision about whether a claim is worth pursuing. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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