One of the biggest stories in comedy in both Australia and Britain in the past week has centred on the allegations made by The Games‘ writers and creators John Clarke and Ross Stevenson on The Drum Unleashed.
According to their article, over a period of “almost four years”, conversations and correspondence about producing a British version of The Games took place between Clarke, Stevenson, Rick McKenna (producer of Kath & Kim, who acted on Clarke and Stevenson’s behalf), Jon Plowman (producer of countless BBC comedies and latterly Head of BBC Comedy) and writer John Morton (People Like Us). During this period Morton “was lent DVDs of The Games” and “acknowledged he had never previously seen nor heard of the show and was impressed and keenly interested” in being involved.
The conversations and correspondence then appear to have ended (why is unclear and no reasons were given in The Drum article), but now Twenty Twelve, a satirical mockumentary about the organising of the London 2012 Olympics which, say Clarke and Stevenson, bears “marked conceptual similarities to The Games”, has been made for the BBC. The writer and director of Twenty Twelve is John Morton and the Executive Producer is Jon Plowman.
An open and shut case of plagiarism you might think? Not according to the BBC, who told Chortle the other day:
Twenty Twelve is an original and distinctive comedy series looking at London as it counts down the last 1,000 days before the 2012 Games begin. It is written by John Morton who created People Like Us and Broken News for the BBC. Its comedy is delivered through a distinctively British sense of humour.
We have investigated the complaints made in relation to The Games and have found no evidence to support the allegations of copying. No use has been made of any material deriving from The Games and we are confident that the allegations are without foundation.
There are, as Tony Martin pointed out on Twitter, questions to be raised from that statement:
1. As the BBC is accused of stealing the idea, are they the right people to ‘investigate’ the complaint and find it ‘without foundation’?
2. Why no denial that Morton had seen the DVDs? Presumably because no-one is disputing that he did. Therefore…
Although it’s also notable that, as far as we are aware, Clarke and Stevenson have yet to take any action beyond penning their piece for The Drum and presumably being the ones who made the complaint to the BBC. Here’s why: plagiarism could not be proven in this case unless an episode of Twenty Twelve contains lines, characters or plots that are identical or extremely similar to lines, characters or plots in The Games. The evidence of four years of conversations and correspondence between Clarke, Stevenson, McKenna, Plowman and Morton does not prove that plagiarism has taken place. Ross Stevenson, who is a lawyer, is no doubt painfully aware of this.
We have watched the first episode of Twenty Twelve and could not find lines or characters in it that are like any in any episode of The Games, although the are slight similarities between the situations in the two shows. We see no reason to disbelieve Clarke and Stevenson’s claims, and we do not endorse the practices they suggest have taken place, but the similarities between The Games and Twenty Twelve pretty much begin and end at “conceptual similarities”.
Conceputual similarities are what is known in the business as ‘format rights’. If you look at Stevenson and Clark’s Drum article, they’re not accusing the BBC of stealing the characters (how could they? Unless they’ve seen advance copies of it?).
So far as I can tell, what they’re accusing them of is: after communications with them, stealing the format. You can purchase format rights. People do it all the time. It seems these guys didn’t – after meetings and viewings of the series. Legally, that’s a problem for the BBC. A big problem. From a purely legal standpoint, I’d say it’s the BBC who would be ‘painfully aware’ of that (and looking at their statement – they go to a lot of trouble to dance around that question).
You’re right though, Stevenson is probably aware of it too. Be interesting to see what happens next. Perhaps this is a warning shot?
Thanks for your comments.
I would say that the costs/time of pursuing action there would be prohibitive, which is possibly something the BBC are banking on.
Also, it’s not like the BBC have ripped off something like Kath & Kim, where the characters and setting are (relatively) specific. They’re making a show set behind-the-scenes at the Olympics – that doesn’t automatically make it a rip-off of another show that happens to use the same setting, even if they are both comedies.
There have been plenty of shows set behind the scenes at a radio station, for example, and while this is obviously much more specific a setting, it is set twelve years later and half a world away. My guess is that the BBC, after thinking about it for a bit, decided that they could simply get away with not purchasing the rights.
Disagree 13 Schoolyards – Having seen both The Games and the first episode of Twenty Twelve you can see the similarity in format. The mockumentary tone is identical (although FWIW I think the BBC version, whilst the first ep had its moments, is somewhat less subtle so far).
I think the key point is that, as LawGeek says, the Australians approached the BBC with the express intention of seeing if they were interested in the format. They appear to have not reached an agreement but have now used the format anyway. The fact that it doesn’t use identical jokes (yet) isn’t necessarily going to prevent a claim, either. Over to the Copyright lawyers.
I’d be very interested to know if there’s ever been a successful claim of this kind made anywhere. I know Hollywood will often purchase similar projects simply to clear the decks for their own, but there’s also something of a tradition of movie-makers running off to make their own rival “spoiler” projects (Robin Hood movies, disaster films, etc) which seem to get made without (excessive for Hollywood, perhaps) legal action.
(interestingly, the UK reviews / comments on Twenty Twelve that I’ve read – even from people who’re aware of The Games – seem to largely be harking back to People Like Us for the mockumentary tone. As you’d expect, considering it was made by the creator of that show. Influences are notoriously difficult to nail down)
In my view the tone in Twenty Twelve is more similar to the tone in People Life Us than the tone in The Games, however according to this article they’ve instructed lawyers in the UK.