Insights High Court awards BBC summary judgment in copyright infringement claim in relation to the programme Silent Witness


Dr Donna Molavi, a screenplay writer who had written a draft screenplay based in a pathology unit, issued proceedings for copyright infringement and breach of confidence against the BBC in relation to a two-part storyline in the forensic pathology series Silent Witness entitled Betrayal.

The various drafts of Dr Molavi’s screenplay were in the form of a political drama involving a plot to assassinate the Prime Minister that was covered up. The Silent Witness story involved one of the characters attempting to protect her father who was involved in nefarious activities at a pharmaceutical company that had caused the deaths of two of its workers.

Dr Molavi claimed various similarities between the two works in two categories: (i) similarities of overall plot; and (ii) similar scenes or events.

Dr Molavi said that the plots were similar because both works were set in a forensic pathology unit and the protagonist in both cases was a forensic pathologist. She also said that both works described discrepancies in the findings made by the protagonist pathologist and the findings made by a second pathologist in a second post-mortem examination report. In both cases, the discrepancies arise in relation to the heart organ of the deceased and raise questions as to whether the death is suspicious or not. Further, Dr Molavi said, in both cases, the protagonist discovers that the cause of the discrepancies in the post mortem findings is unauthorised interference and tampering with the deceased’s body. In both cases, the protagonist successfully identifies the person responsible for this interference and establishes that the protagonist’s initial examination and subsequent post-mortem report were in fact correct.

Dr Molavi also listed various alleged similarities in particular scenes and events.

It was accepted that Dr Molavi’s written works on which the claim was based were original and that if they had been copied by the BBC, what had been copied was a substantial part of the original works. The main area of contention was whether the BBC had in fact copied Dr Molavi’s works.

Dr Molavi’s claim was based on an inference of copying by the BBC drawn from the alleged similarities between the works that she said could not be explained by coincidence. The claim did not plead that the BBC had had access to Dr Molavi’s works such that they could have been copied.

The BBC applied for summary judgment against Dr Molavi on the basis that she had no real prospect of succeeding in a claim based on inference and that because she had not pleaded that the BBC had had access to her works, the claim was bound to fail. The question was, therefore, whether Dr Molavi’s plea of similarity was sufficient to justify a realistically arguable inference that copying must have taken place. Given that the breach of confidence claim covered the same ground, Mr Justice Marcus Smith held that it stood or fell together with the copyright claim.

Smith J found that the allegation of copying based on the simple fact that both plots were set in a forensic pathology unit and the protagonist in both cases was a forensic pathologist was unarguable given that the series Silent Witness has, since 1996 when it was first broadcast (a long time before Dr Molavi wrote her works), always been set in a forensic pathology unit and has always contained forensic pathologists as protagonists.

Smith J also found that the more detailed alleged plot similarities were not capable of giving rise to an arguable inference of copying. He noted that stories derive their drama from certain basic themes and that the tropes that underlie them are limited by what drives the human condition. Therefore, for example, a story based around revenge, jealousy or power will share certain basic features with another story similarly based. For an inference of copying to be arguable, he said, the similarities must go beyond tropes that are common because we all share the same human condition.

Accordingly, Smith J found that the plot in Dr Molavi’s works was very different to the plot in the BBC’s works. The only similarity, he said, was that both involved efforts by protagonists to overcome a force for bad. He did not consider that anyone would think the plots were similar or related and would certainly not draw an inference that the BBC’s programme had copied parts of Dr Molavi’s works. In Smith J’s view, a reader/viewer of both works would regard them as very different and would consider an allegation of copying to be “far-fetched, if not outlandish”. Accordingly, the plea of inferred copying based upon plot similarities was unarguable.

As for the alleged copying of scenes and events, Dr Molavi alleged linguistic similarities and similarities in the selection and arrangement of narrative details between the works.

Smith J noted that linguistic similarities per se cannot give rise to an inference of copying as the use of commonly understood words and expressions does not amount to copying. Such similarities are inevitable between works, as are basic forms of human conduct. For example, Dr Molavi alleged that the following sequence which appeared in both works inferred copying: (i) a door is opened; (ii) a light is turned on in the mortuary; and (iii) a man in white uniform removes a body from a freezer. Smith J said that when it is dark and someone opens a door to a room, the likelihood is that the next thing he/she does is to switch on the light. Further, Silent Witness has featured scenes in a pathological unit for years and Dr Molavi’s decision to set her story in the same setting meant that similarities such as this were inevitable. In Smith J’s view, this was a “hopeless” allegation on which to found an inference of copying and was not arguable. The same was true of Dr Molavi’s other allegations of linguistic or narrative details.

Overall, Smith J found that there was no arguable basis for the contention that it should be inferred that the BBC copied any part of Dr Molavi’s works. The BBC’s application for summary judgment was granted. (Donna Molavi v Virginia Gilbert [2023] EWHC 646 (Ch) (23 March 2023) — to read the judgment in full, click here).