Copyright Infringement
Film Factory Limited v Multichoice Kenya Limited & Moon Beam Productions (Civil Suit E043 of 2022) [2023] KEHC 1436 (KLR) (Commercial and Tax) (3 March 2023) (Ruling) Civil Suit E043 of 2022
Facts
Film Factory Limited (the applicant) filed an application seeking an injunction against Multichoice Kenya Limited (the 1st respondent) and Moon Beam Productions Limited (the 2nd respondent). The applicant claimed that its copyright was infringed by the production and airing of a film titled "Baba Twins," alleging that the storyline was derived from a concept of the plot, it had sent to the 1st respondent in 2018 via email. The applicant sought to restrain the respondents from further airing or marketing the film and requested the court to order the respondents to provide detailed documentation regarding the production and distribution of the film.
Issue
Whether the applicant was entitled to an interlocutory injunction to restrain the respondents from airing and marketing the film "Baba Twins" based on alleged copyright infringement.
Rule
The court applied the principles for granting interlocutory injunctions as established in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR and Giella v Cassman Brown [1973] EA 358. The applicant must demonstrate:
- A prima facie case with a probability of success.
- Irreparable harm that cannot be adequately compensated by damages.
- That the balance of convenience favours the applicant.
Analysis
The case centers on a copyright infringement claim by Film Factory Limited regarding the plot of the film "Houseband," which was submitted via email to Multichoice Kenya Limited in 2018. The respondents later produced and aired a film titled "Baba Twins," prompting the applicant to assert that the two works were substantially similar and that their copyright had been violated.
For a prima facie case to be established in copyright infringement, the applicant must show that they own the copyright and that there is evidence of infringement. The applicant argued that the plot for "Houseband", sent via email, was protected under copyright. The court, however, found that no prima facie case was made for several reasons: The applicant had not presented any concrete evidence of copyright ownership over the plot or storyline. In this case, the mere act of sending an idea or plot via email does not constitute ownership or proof of copyright.
Under Kenyan copyright law, as per section 22(3) of the Copyright Act, works must be fixed in a tangible medium to be protected. The applicant failed to provide evidence that the "Houseband" plot was fixed in a form that satisfies this legal requirement beyond the email communication.
The absence of formal copyright registration or a clear and tangible fixation of the plot worked against the applicant's claim.
Did the Respondent Likely Infringe on the Houseband Plot Through Baba Twins Production?
The applicant claimed that the "Baba Twins" film infringed the "Houseband" plot, which they alleged was conveyed to the respondents in an email. However, the court found: The applicant’s only supporting evidence was an email from 2018 that purportedly outlined the Houseband plot. The respondents argued that the idea in the email was not original and provided evidence of other films with similar concepts, such as "House Husband" produced in Nigeria in 2015. This weakened the applicant's claim of originality.
Additionally, the court noted that copyright law protects the expression of ideas, not the ideas themselves. Simply having a similar concept or theme in a film (such as a "houseband") does not constitute copyright infringement unless there is clear evidence that the expression (e.g., the dialogue, scenes, characters, or specific storyline) was copied.
Since the applicant did not provide detailed comparative evidence demonstrating that the respondents copied specific elements of the expression, rather than just the general idea, the court found no prima facie case of infringement.
Copyright Protects the Expression of Ideas, Not Ideas. This case strongly reinforces the principle that copyright law protects the expression of ideas, not the ideas themselves. The applicant's submission of a plot via email, without providing evidence that specific creative elements were copied, does not satisfy the requirement for copyright protection.
"Houseband" was an idea for a film about a particular theme (likely about a stay-at-home husband). However, the mere communication of this idea via email does not guarantee protection. To claim infringement, the applicant would need to prove that the specific expression of this idea (such as character development, dialogue, and sequence of scenes) was copied by the respondents in "Baba Twins". The court emphasised that there was no evidence of such expression being copied.
Proof of copyright ownership is essential in any copyright infringement claim. In this case, the applicant did not provide sufficient proof that they owned the copyright in the "Houseband" plot. The court underscored the importance of providing evidence that a work is fixed in a material form, as required under the Copyright Act, to demonstrate ownership.
Registration of the work is not mandatory for copyright protection, but having a registered copyright or tangible proof of creation strengthens a claim. Without such proof, a claim of infringement is unlikely to succeed, as seen in this case where the applicant failed to meet the legal threshold to establish that they owned a copyright over the "Houseband" plot.
The court’s decision to dismiss the application for an injunction appears well-founded based on the principles established in previous case law. The applicant’s reliance on email correspondence as evidence of copyright infringement was insufficient, particularly given the lack of proof that the material constituted original, copyrightable work. Moreover, the court correctly noted the speculative nature of the applicant’s claim of irreparable harm.
Conclusion
The court dismissed the application for an interlocutory injunction, finding that the applicant had failed to establish a prima facie case and had not demonstrated irreparable harm. The case was set down for a mention to facilitate the hearing of the main suit.
Ruling available here