By Georgina Hey & Jerome Messiha
Content developers and creatives are generators of ideas and concepts. The point at which any concept transforms into a copyright protected work is often a vexed issue in the creative (and other) spaces.
A recent Australian case, Duncan v ABC [2023] FedFamC2G 993, has again demonstrated the limitations of copyright protection in the world of creative content ideas generation.
‘Buster, the Brave Little Wooden Boat’
In 2009, Ms Duncan submitted a script proposal for a children’s animated show titled ‘Buster the Brave Little Wooden Boat’ to the ABC. Set in an open harbour, the proposed animation followed the adventures of a wooden boat named ‘Buster’ and his best friend, a seagull named ‘Jack’. She also submitted a more detailed script proposal and storyboard for the show to Screen Australia in 2011. The project was rejected.
Finally, in a last-ditch attempt to publish and broadcast the project, Ms Duncan completed six episodes of the ‘Buster & Jack series’, following the same premise as her earlier proposals, which aired on community television in late 2014.
‘Bubble Bath Bay’
Separately, in 2007, Mr Eden-Styche submitted the original concept for ‘Bubble Bath Bay’ to the ABC. Mr Eden-Styche could show a development arc commencing in late 2002, during his time working in hospitality at a yacht club.
The show was eventually broadcast in 2015 by ABC. It was also set in a harbour and followed the adventures of ‘Sydney the Sailboat’ and his friends, including a bird “Stormy”.
Did Bubble Bath Bay copy a substantial part of Buster the Brave Little Wooden Boat?
Duncan brought proceedings against the ABC claiming a substantial copying of her copyright works, in the form of her scripts and the completed episodes, relying on the shared use of a boat as the main character, a bird character, a father figure that is central to the story, the harbour setting, and a similar opening scene.
ABC denied infringement, arguing that Duncan’s claimed similarities were mere ideas, concepts, or themes, which are not protected through copyright, and additionally, that the common concepts were generic stereotypes.
Decision
Ultimately, the connections and similarities identified by Ms Duncan between her work and ‘Bubble Bath Bay’ were found to be merely common themes and ideas. Elements such as the harbour environment, the dangers of the open sea and a lighthouse were unprotectable concepts over which no one user could hold a monopoly. No objective similarity could be drawn between ‘Bubble Bath Bay’ and the essential features and substance of Duncan’s work.
Further, as a matter of timing and logistics, there was no conceivable evidence that Ms Duncan’s works were accessed or used by the ABC or the creators of ‘Bubble Bath Bay’ in making the show.
Reinforcing the limitations of copyright protections for creators
- Mere ideas, themes, and concepts are not protected by copyright.
- To establish infringement by reproduction, ‘resemblance’ to the copyright subject matter and ‘actual use’ of the copyright work must be established.
- There must be a sufficient degree of objective similarity between the copyright work and the alleged infringement, and there must be an identifiable causal connection between them.
- To establish causal connection where actual access or copying is not proved, you must show a high degree of similarity between the copyright work and alleged infringing.
Importantly, when discussing creative content ideas for commercial development, always obtain a contractual non-disclosure agreement to give you the contractual right to take action to prevent use of your ideas in other contexts.