Radiohead’s Burn the Witch – creative animation or irreverent imitation?
Monday 13th June 2016
Recent allegations of copyright infringement by the creators of the sixties’ BBC TV show, Trumpton, against popular British band, Radiohead, are another reminder of the often blurred lines between copying and independent creativity. In this article, we look at what the actions of copyright and passing off protect and their relevance to this situation.
Many of you may remember Trumpton, a quaint fictional town guided by the always reliable Town Hall Clock, where people go about daily routines and are treated to regular performances by the Fire Brigade Band. Trumpton is a village of county Trumptonshire and namesake of the second series of the popular children’s Trumptonshire Trilogy, released by the BBC in the 1960s. Trumpton is characterised by stop motion animation, puppets and depictions of peaceful village life. Stop motion animation is an animation that is captured one frame at a time, with physical objects that are moved in between frames. It is a technique that has been around almost as long as traditional filmmaking.
More recently, Radiohead have used stop motion animation in their Burn the Witch music video, released in May 2016. The video also uses similar characters and characters’ movements, and a similar village setting to Trumpton. An image from both the music video and the show are displayed below.
Image 1: ‘Burn the Witch’ by Radiohead
Image 2: Trumpton (Episode 3)
Trumpton’s creator claims that the music video breaches copyright, “tarnishing” the Trumpton brand. However, under copyright law the similarities in the animation styles may not result in an upheld claim for copyright infringement.
A copyright work?
Copyright is an exclusive intellectual property right given to owners of original works. In New Zealand and the United Kingdom, copyright arises automatically upon the creation of the original work. A key principle is that copyright does not protect ideas themselves, only the expression or form of these ideas. This rule of thumb limits the extent of the rights afforded by copyright. While owners are granted rights to their particular creative expression, others are free to extract the ideas behind their work and build upon them.
This idea/expression dichotomy can be difficult to apply in practice and often depends on the facts of each case. While Radiohead’s music video does share stylistic elements with Trumpton, such as stop motion animation, it is unlikely that there would be copyright in the animation style itself. This animation style or technique can be seen as an “idea” which can be expressed in many different ways through character images, settings, within an overall production. Radiohead are not inhibited from taking inspiration from previous works such as the Trumptonshire Trilogy so long as a substantial part of the original expression is not taken through copying.
Originality is a second fundamental aspect of copyright law. The more recent work must be independently produced and result from some effort or degree of skill, although the amount of labour or skill required is small. “Original” means only that it is not copied – creative ability is not judged. Here, Radiohead does appear to have produced an original creation through independent effort. While paying homage to Trumpton, the music video producer has added original characters and a unique storyline. The video is intended to be social commentary relevant to 2016, adding more distinctiveness from the 1960s show.
Aside from the stop motion animation technique, copyright is likely to subsist in other elements of the television show, such as, the appearance of individual characters (eg, sketches as artistic works), storyboards, the music and the figurines used for the animation. In New Zealand, the Copyright Act 1994 provides protection for literary, dramatic, musical and artistic works, sound recordings, films, communication works and typographical arrangements of published editions.
To establish copyright infringement, Trumpton’s creators would need to show which original works they are claiming copyright in, that copyright does exist in those works and that Radiohead has copied in relation to one or more of these works. The courts have developed a threefold test for infringement:
- There must be reproduction of an entire work or a substantial part of the work
- There must be sufficient objective similarity between the infringing item and the copyright work,
- And lastly, there must be some causal connection between the copyright work and infringing item.
Trumpton’s creators would have a claim for copyright infringement where they could prove the above test in relation to original works featured in the television show. If there is sufficient similarity in relation to a copyright work, the main issue would be whether Burn the Witch has taken a substantial part of the Trumpton series.
Tarnishing the brand
Trumpton’s creators seem particularly concerned with their reputation, and so it is worthwhile considering if passing off, which protects reputation, is relevant here. Passing off is a common law tort, and New Zealand law originated from the United Kingdom. There are three broad elements that a plaintiff in a passing off action must prove in order to succeed:
- there must be sufficient reputation or goodwill in a product or service or get up,
- the defendant, by adopting a confusingly similar get up, misrepresents its product or service as being connected to the plaintiff, and
- damage has occurred to the business of the plaintiff.
In this case, it is likely that Trumpton’s creators could establish reputation within the United Kingdom given the popularity of the Trumptonshire Trilogy in that country when broadcast in the late 1960s. Reputation outside the UK may be harder to prove, and would depend on where the BBC had licensed the show.
The second and third requirements of passing off would be more difficult to establish however. It is unlikely that people watching the Burn the Witch video would be deceived into mistakenly thinking that it has come from the producers of Trumpton, or endorsed by the BBC or Gordon Murray (the creator). Firstly, this is because of the different contexts in which a music video would be viewed compared to a children’s television series and their likely audiences. Further, it appears that Trumpton has not been broadcast outside of England for fifty years. Secondly, it is likely that a British audience would have some knowledge of Trumpton and be astute enough to tell the difference in origin to Burn the Witch. Audiences of the music video outside of the United Kingdom may not have any knowledge of Trumpton and therefore would not be mistaken in the first place. It would be hard to establish damage suffered if there is no misrepresentation as there is no damage to reputation or goodwill. If misrepresentation was established, it would be hard to prove monetary loss or opportunities lost to licence the series as Trumpton is no longer broadcast.
Trumped (or stumped!) by copyright law?
The Trumpton and Radiohead issue arose in the United Kingdom, but the likely legal position suggested above would be the same in New Zealand.
It is important to seek expert advice on the merits of any copyright or other claim before proceeding and know what intellectual property assets your business has. Here at Baldwins, we can provide expert advice to ensure it is the right move for your business and work with you to put you in the strongest position in your case. If legal action is not the right move for your business, our experts can help devise strategies across your entire IP asset portfolio to protect your brand and company’s reputation and deter infringers. We offer an IP audit or review service which is a good start to assess what IP you have and where there are gaps in your protection.
If you would like assistance in any copyright issues, or have questions about other IP services, please contact us.
This article was written with assistance from Vicky Mullins.