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The complicated position that subconscious copying occupies when establishing reproduction and infringement in copyright law was recently highlighted in a key decision by the (PCC) of the UK. In , Judge Birss’s meticulous judgment focused on whether there existed the possibility of either conscious or subconscious infringement, the latter being the specific aspect that the plaintiff’s case was built on.

Mr. Mitchell’s case began by alleging that the characters on the BBC’s hit TV series, ’ were copied from his own proposal of animated eco-rangers for children, the ‘Bounce Bunch’. The ‘striking similarities’ between the two sets of characters were enough to raise infringement, in the plaintiff’s opinion, especially since the characters had been made available online in some form since 2004, and most certainly since 2007. This raised the issue of access, and whether the BBC and (a design firm hired to co-create the Kerwhizz characters) could have had access to the Bounce Bunch online, and whether this could have led to copying— either consciously or subconsciously.

In denying any copying or infringement, the BBC, while admitting that there were certain similarities between the two sets of characters, also pointed out that they were  to be considered copying. With respect to access, it produced a stream of witnesses— from the graphic designers involved at all stages, to the producer of the entire project— all of whom vehemently denied being influenced by Mr. Mitchell’s work, even going so far as to highlight that the former’s work wasn’t memorable enough to be remembered, let alone be copied from. The BBC’s positive defense rested primarily on proving, with the help of its witnesses, that all content produced for Kerwhizz was entirely independently created, with the similarities between Kerwhizz and the Bounce Bunch being nothing more than the commonalities that were a part of the ‘commercial and practical realities’ of the children’s cartoon industry in general.

Judge Birss considered the relevant sections of the : for whether the Bounce Bunch (as original artistic works)  were copyrightable; for the copyrightability of graphic works; for the legal definition of infringement, and finally, to determine if what was allegedly copied by the BBC constituted a substantial part of Mr. Mitchell’s copyrighted work. The judge was also concerned that the plaintiff’s demand that the defendant show that there was ‘no possibility of access’ and that it “must be ‘categorically impossible’ for the defendant to have had an opportunity to copy” tried to raise the civil standard of the balance of probabilities too high. He preferred to compare the striking similarities between the two works ‘only ever [as a] matter for weighing up the evidence.’ Ultimately, Judge Birss found that the possibility that someone from the BBC ‘could have had access’ to the Bounce Bunch while creating the Kerwhizz project, along with certain similarities, , was enough to raise an inference of copying. This pushed the onus onto the BBC to prove independent creation.

After accepting the BBC’s evidence on the above as ‘fair and truthful’ so as to rule out conscious copying, the judge outlined three factors to determine subconscious copying had taken place. Considering the degree of familiarity, he pointed out that because he had accepted the BBC’s evidence on independent creation as true, it was always possible to demonstrate subconscious influence, thus showing the “slippery nature of the allegation of subconscious copying when combined with the reality of the web.” In considering the character of the work, Judge Birss found the Bounch Bunch to be unoriginal, with generic functional features for ease of animation, rather than anything unique that could have been remembered and copied. Finally, the judge considered a long list of objective similarities, including the much-debated ‘blonde quiff’ on one of the characters in both sets, to be nothing more than ‘mere coincidence,’ pointing to several popular cartoon and comic characters as possible sources of inspiration for the Kerwhizz figures.

While the judgment built on already established principles of copyright law, it seemed to have the paradoxical effect of failing to provide a clearer direction for future findings of subconscious copying. For now, it would seem, subconscious copying still remains at hand.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.