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Wednesday, 11 June 2008

Cashback claimant struck out

In these days of digital copyright there's nothing like a good old-fashioned "you stole my story" claim to set the pulse racing -- and that was the claim in Obisanya v Ellis and another, a Chancery Division of Mr Justice Henderson on Monday, a decision that has not yet been posted on BAILII but which was picked up smartly by the LexisNexis Butterworths subscription-only service.

Sean Ellis (the first defendant) was a writer and film-maker, the second defendant being a production company that made a short film in 2004 and a feature film two years later (both, it seems, called 'Cashback'), based on Ellis's screenplay. as luck would have it, between 2001 and 2004 Elizabeth Obisanya was working on her own screenplay, initially called 'Cashback, Paper or Plastic' but later shortened to 'Cashback'. Both Obisanya's and Ellis's screenplays and films were romantic comedies and shared the same setting. Obisanya alleged that the defendants' films infringed her copyright. The defendants counterclaimed for an injunction to stop Obisanya alleging they had copied her work, seeking summary judgment on the basis that Obisanya had no reasonable prospect of succeeding at trial and that there was no reason why the claim should continue to a full hearing. In their view the similarities relied on by Obisanya were coincidences stemming from the shared setting; they also relied on the chronology which suggested that Obisanya had not finished writing her screenplay by the time the first short film, on which the feature film was based, was completed.

Henderson J struck out the claim. In his view, given the chronology of events, Obisanya could not reasonably establish that there was any possibility that the defendants had gained access to her screenplay. Any similarities could be explained by the sharing of a commonplace setting. Further, given the nature and extent of Obisanya's allegations, she wound be restrained from making any similar allegations in the future.

The IPKat knows how strong is the attachment that authors and playwrights have for their works, and he is sorry that Ms Obisanya has put herself to so much expense and embarrassment. However, she was a litigant in person and she was seeking damages of £16 million -- which suggests that her expectations, both in regard to liability and in regard to quantum, were highly optimistic and could have been tempered by a little professional advice. Merpel says, now what if she had taken an early opportunity to register Cashback as a trade mark for plays, stories and the services relating to their supply ...?

Sean Ellis's Cashback here, reviewed here

2 comments:

Anonymous said...

Existing registrations for CASHBACK, including one in class 16, could make registration for plays, films and associated services difficult.

Elizabeth oBisanya said...

HI
Actually there is the matter of the Order that the other party did not comply with which was allowed by His honour if you really wanna publish the truth otherwise it is misleading.

Secondly: His honour Mr Justice Peter "DAVINCI CODE JUDGE "Smith had disallowed and vacated the first SUMMARY JDUGMENT hearing to go ahead as the other side refused to comply with the Order . The Second one had to be listed due to sons school inset day and the third and final one before His Honour Mr Justice Peter Smith is disputed

Judge HENDERSON ALLOWED an non complied order (on time ) hearing to go ahead which meant that I was not prepared for starters
Things like the video of the short which I made whilst I was at GOld[Goldsmiths college] the exact dates which I made it now i forget [but it is poss that it was before ELLIS COMPLETED HIS] incidently the whole CLASS OF 2003/4 FEATURE FILM including the course convenor watched the short film if anyone doubts my word call them in and get a testimony even the man MURRAY that played the lead in it.

Cheers,
Only I hate half told stories dont you?

Elizabeth Obisanya
CASHBACK paper or plastic CASTING and FEATURE FILM.

P.s Wikipedia got it wrong and said that it was first called CASBHACK paper or plastic.
No it was first called CASBHACK and later called CASHBACK paper or plastic when I registered it as PAPER OR PLASTIC with the WGA in 2005.

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