http://ipkitten.blogspot.com/2019/08/screenplay-litigation-in-nigeria-missed.html
This case garnered a lot of interest at its inception because the plaintiff had first obtained an interim injunction from the court restraining the defendants from holding their planned premiere for the feature film entitled Okafor’s Law. The crux of the plaintiff’s application for the injunction was that the screenplay for this feature film was substantially similar to and infringing of its screenplay with a similar title registered with the Writers Guild of Canada. The court subsequently lifted the interim injunction holding that it was granted based on insufficient evidence, as the copyright claim was yet to be determined.In order to resolve the question of whether the defendants’ screenplay in the feature film was infringing of the plaintiff’s screenplay, the court accepted that the plaintiff needed to establish these 3 elements: ownership of a valid copyright; proximity and access by the defendants to the work in which the plaintiff claims copyright and copying of constituent elements of the work that are original and/or substantial similarities between the constituent elements of the plaintiff’s work and that put out by the defendant. See pages 16 and 17 of the judgment.
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The Court observed that, the starting point in establishing these 3 elements would be for the plaintiff to provide physical or documentary evidence of its work (i.e. the screenplay) alleged to have been infringed. As the plaintiff did not produce the physical evidence of its screenplay, which it alleged had been infringed, the Court held that there was no basis to consider the infringement claim and accordingly dismissed the plaintiff’s suit. See page 65 of the judgment.
Comment
This case represents a missed opportunity (on the part of the plaintiff) to procure judicial precedent for the copyright community in Nigeria on the question of screenplay litigation and the factors that Nigerian courts would find applicable in conducting the substantial similarity test. This is because the case was not decided on the merits due to the plaintiff’s failure to produce physical evidence of the alleged infringed screenplay. This post will highlight 3 of such missed opportunities:
Missed opportunity #1: The plaintiff hinged its claims on the allegation that it gave the 3rd defendant access to its screenplay during discussions for a co-production project and that the 3rd defendants gave the 1st and 2nd defendants access to the said screenplay. See page 19 and 24 of the judgment. To resolve the issue of access, the court needed to see what was given to the 3rd defendant to ascertain that it was indeed the plaintiff’s screenplay in issue. Screenplays serve a utilitarian purpose in that they are not the final product within the film industry. Instead, screenplays get produced and adapted into feature films. Because of this, screenwriters are understandably wary of sharing their screenplays with film producers and funders without securing agreements as to remuneration and attribution. Given that the evidence in Raconteur was that what was shared with the 3rd defendant was a screen treatment, synopsis and plot from the plaintiff’s screenplay (page 19 of the judgment), it would have been interesting to see whether the court will accept or reject those documents as similar to the plaintiff’s screenplay and therefore, evidence of access. For instance, is a screen treatment the/an original component of a screenplay? See debates on the import of screen treatments here and here. This question is important in the light of the decisions from US courts and in the light of cases in which the UK courts were invited to consider the question of substantial similarities in music copyright infringement cases. Many commentators have argued that not every similarity is infringing; instead the similarity must be with respect to the original elements of a given work. See here and here.
Missed opportunity #2: The plaintiff also produced reports from 2 professional writers as experts who analysed and identified substantial similarities between the plaintiff’s screenplay and that of the defendants. The experts were not called as witness and so their analysis, which was presented by a different witness, was rejected as hearsay evidence. Even if the experts were called as witnesses, the court also needed to see the plaintiff’s work alongside that of the defendants in order to assess the existence or otherwise of substantial similarities in the original elements of the screenplay. Without seeing the actual plaintiff’s screenplay, such comparison is impossible. It would have been helpful to see what experts in the screenwriting sector consider as copying or similar and which expert opinion the court would have found acceptable. Again, given the example of the music industry where musicologists appear to be in high demand as experts to establish similarities or dissimilarities, Raconteur would have provided a similar opportunity for expert screenwriters to provide the court with valued assistance on what is acceptable or unacceptable.
Missed opportunity #3: Another missed opportunity for setting judicial precedent in screenplay litigation was the failed claim of the plaintiff for an order of mandatory injunction requiring the 1st and 2nd defendants to publish a notice in two national dailies, a radio station and national television channel disclaiming authorship of the screenplay in their feature film. This claim was obviously an attempt to remedy the existing situation at the time where it was alleged that the author of the plaintiff’s screenplay was the rightful author of the screenplay for the feature film and should have been named as such in the opening or closing credits for the ‘Okafor’s Law’ feature film. Attribution is crucial for screenwriters in building a portfolio of their work. A finding of infringement would have led the court to determine the whether the newspaper publication disclaiming the 2nd defendant’s authorship was an appropriate remedy for the alleged infringement of the moral right of attribution. In the opinion of this Africa Correspondent, a claim for injunction requiring the defendants to procure a media publication of the name of the plaintiff’s screenwriter as the author of the screenplay for the feature film would have been more appropriate. Further, this may be an injunctive relief that is an easier pill for film production companies to swallow given that it does not stop them from continuing with distribution of their feature films. As opined here, injunctive reliefs in screenplay litigation engender massive losses for film production companies. Indeed, this Africa Correspondent has on many occasions advised clients to reject the waiver of injunctive relief claims, which is fast becoming a staple contractual provision in the Nigerian film and television industry. See an example of such contractual provision, here.
Since the court could not address these issues on the merits, guidance for screenplay litigation will be a matter for another day. In the light of the absence of a crucial evidentiary item (i.e. the alleged infringed screenplay), an appeal court cannot even save the day since it rarely considers or deals with facts.
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