CH 1996 No. C/4964, C/4128, Claim no - CL805894, CL809512, CH1999-P-No-00241
Neutral Citation Number: [1999] EWHC Ch 262
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Dated: 6th October 1999
Before: 
THE HON. MR. JUSTICE PARK
- - - - - - - - - - - - - - - - - - - - -
B E T W E E N

	CH 1996 C/4964		
	ANDREW CHRISTOFFER		
	v		
	POSEIDON FILM DISTRIBUTORS LIMITED		
			
	CH 1996 C/4128		
	(1) ANDREW CHRISTOFFER (2) PHOTIOS CHARALAMBOUS		
	v		
	POSEIDON FILM DISTRIBUTORS LIMITED		
			
	CL 805844		
	POSEIDON FILM DISTRIBUTORS LIMITED		
	v		
	SABRITA PAIK		
			
	CL 809512		
	POSEIDON FILM DISTRIBUTORS LIMITED		
	v		
	ANDREW CHRISTOFFER		
			
	CH 1999 P/002414		
	POSEIDON FILM DISTRIBUTORS LIMITED		
	v		
	ANDREW CHRISTOFFER		

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Gordon Bishop of Counsel instructed by Menneers Solicitors for the Plaintiff
David Matthias of Counsel instructed by Yanakas Votsis Achilles
Solicitors for the Defendant

Hearing date: 05. - 14.07.1999
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT

A.	Overview
These are five actions which have been heard together.  Some of them were commenced in the County Court but have been transferred to this court.   The principal disputes are between Mr Andrew Christoffer (sometimes called Andreas Christophorou) and Poseidon Film Distributors Ltd.

Poseidon is a film production company controlled and managed by Mr Frixos Constantine.  Its business includes conceiving and producing animated films for television. Mr Constantine is a Greek Cypriot by origin but has been based in this country for over 30 years.  Mr Christoffer is also a Greek Cypriot by origin, but has lived in England since he was 7 years old.  He was born 1954 and is about a generation younger than Mr Constantine.  He had ambitions to become a script-writer for television films.  In the first half of the 1990s he had connections with Poseidon, some details of which I will give later.  He and Mr Constantine fell out comprehensively in March 1995, and eventually these cases resulted from the rupture of relations between them.

In outline the principal questions which I have to decide and my answers to them, are as follows:
1.	“The Cyclops”
(a)	Did Mr Christoffer create and own the copyright in a film script for an animated television treatment of the story of the Cyclops, taken from Book IX of Homer’s Odyssey?
Answer: Yes.
(b)	Did Poseidon infringe Mr Christoffer’s copyright in the Cyclops script?
Answer: Yes.

2.	The Diploma.
Does Poseidon owe to Mr Christoffer for writing services on a script of an unmade film called “the Diploma” any amount in excess of what it has already paid to him?
Answer: No.

3.	Global Bears Rescue
(a)	In respect of writing services upon scripts for episodes of an animated television series called “Global Bears Rescue” - henceforth GBR or sometimes Bears - does Poseidon owe to Mr Christoffer (either alone or together with Mr Photios Charalambous - see (b) below) any amount in excess of what it has already paid to him?
Answer: No.

(b)	If the answer had been yes, would Poseidon’s debt have been owed to Mr Christoffer and Mr Charalambous together or only to Mr Christoffer alone?
Answer: it would have been owed to Mr Christoffer alone.
(c)	Does Mr Christoffer, either alone or jointly with Mr Charalambous, have a right to be identified as the writer of certain of the GBR episodes?
Answer: No.

4.	Loans.
Is Mr Christoffer liable to make any payments to Poseidon by way of repayments of loans?
Answer: No.

5.	Conversion of documents.
(a)	Did Miss Paik (the defendant in the third of the actions listed at the head of this judgment) commit the tort of conversion of certain documents belonging to Poseidon?
Answer: Yes.
(b)	What remedies should be awarded to Poseidon for Miss Paik’s conversion of its documents?
Answer: nominal damages of £1.
(c)	Did Mr Christoffer, as well as Miss Paik, commit the tort of conversion of any of Poseidon’s documents?
Answer: No.

I mention now that, when I reach the stage of discussing the foregoing issues,  I will not deal with them in the order in which I have summarised them above.

B.	The principal witnesses
The principal witness on one side was Mr Christoffer.  He gave his evidence competently and fluently.  In many respects I accept it, but there are some implausibilities in it, and I do not feel constrained to accept it in its entirety.  In particular I am not satisfied that Mr Christoffer has discharged the burden which rests on him under issues 2 and 3(a) above.  I should perhaps mention that, in connection with the conversion issues in 5 above, there was one matter on which I feel fairly sure that Mr Christoffer (perhaps out of chivalrous motives towards Miss Paik) gave untrue evidence.  That being so, I believe that I ought properly to be cautious about accepting his evidence on other disputed issues of fact.

The principal witness for Poseidon was Mr Constantine.  There is no point in my equivocating about this.  Mr Constantine was a conspicuously poor witness.  He was excitable, voluble and erratic.  His evidence, written and oral, was littered with inconsistencies.  Counsel had a near-impossible task to get him to answer the question and to stop him diverting into other pre-occupations of his own, many of which included virulent personal attacks on Mr Christoffer.   When I tried, I do not think that I did any better.

Mr Bishop, who appeared for Mr Christoffer and Mr Charalambous and who effectively took upon himself the task of speaking for Miss Paik (although strictly she appeared for herself), flatly said that Mr Constantine told many lies in the course of his evidence.  Mr Constantine certainly said things which cannot have been correct, but he did not seem to me to be the sort of witness who in a deliberate and calculating way invented false evidence while in the witness box.  He believed whatever he was telling me at the time when he said it.  The trouble is that he may have been telling me something different earlier in his evidence, and at that time he believed what he was telling me then.  It is not so much that he has a tendency to make up whatever suits him at the time and does not care whether it is the truth or not.  Rather he has a tendency to believe that whatever suits him at the time is the truth.

However, whatever the psychology that lies behind Mr Constantine’s erratic evidence I can place little or no reliance upon it except where it is corroborated by the contemporary documents.

There is something else which I feel that I must say about Mr Constantine.  He is a larger than life personality, and many of his business acquaintances like him a lot.  But on this particular case I feel that he has lost all sense of proportion and much of his thinking is irrational.  He has a venomous hatred for Mr Christoffer, and this case has become a crusade.  In his own evidence he berates himself for what he conceives of as his foolishness in relation to Mr Christoffer.  “I am an idiot in this case”, he said at one stage.  He was thinking of the events which preceded the case, but he does not think or behave rationally in the course of the case either.  Some idea of his obsession can be gleaned from a vituperative letter which he wrote to Mr Christoffer on 10 August 1998, beginning “Hello GREAT WRITER”.  It would be excessive for me to quote it all, but here are a few extracts which give something of the flavour:

“Just you wait!!  You got used to con people, you never worked in your life, you manage to cheat Banks, Building Societies and even you managed to befriend stupid Compatriots and cheat them, like myself ...

...

... You are a dangerous hypocrite, a snake in the grass.  This is not cleverness, in the long run this will become a boomerang.

...

I think you do not realise still what will happen to you.  The last two years I was very busy and I did not have time to deal with you ... I have now decided that it is time to spend some time dealing with you ... I am going to use only Legal and Honest means ... I am not going to use your methods, your lies and your behaviour. ... you will be continuously and I mean continuously hearing from me.  You will never be left alone.

..

And you will have this all your life without stop.  See you at the COURTS!!”

That is the state of mind with which the moving spirit of Poseidon has gone into this case.

I have to refer to one other matter in connection with the evidence.  In the preliminary stages of this case Poseidon produced a document which on the face of it was a manuscript letter, dated 5 May 1994, from Mr Gwyn Pritchard of BBC Wales.  He is currently the head of Welsh language programmes at BBC Wales.  The letter makes criticisms of “the latest script for Odysseus and the Cyclops”.  Mr Christoffer’s solicitors disputed the authenticity of the document.  Mr Pritchard then made a written statement of 24 November 1997 (typed this time) “To whom it may concern” saying “I am the author of the letter dated 5 May 1994 a copy of which is attached hereto and certified by me as a true copy of the original”.  However, Mr Pritchard signed a witness statement a day or two before the trial began which set out the truth.  The manuscript document produced by Poseidon had not been written by Mr Pritchard on 5 May 1994.  In late 1995 or early 1996 Mr Constantine had telephoned Mr Pritchard: he had lost the letter of 5 May 1994 and asked if Mr Pritchard would produce a copy.  There was no copy on the files at BBC Wales.  Mr Pritchard then wrote a manuscript letter.  He said in evidence that it reproduced as closely as he could remember the letter which he recalled having sent eighteen months or so earlier.  He dated it 5 May 1994.  He did not annotate it to the effect that he believed it to be a reasonably accurate copy of a lost original.  He ended it “Talk to you soon.  Best wishes, Gwynn”.  He said that he had forgotten about this when he signed his statement of 24 November 1997.

In the circumstances Mr Bishop (appearing for Mr Christoffer) does not accept that the alleged letter of 5 May 1994 was ever written at all.  I am certainly not prepared to find positively that it was.  Mr Pritchard was very apologetic about the whole matter, as he certainly should have been.  He said that in 1994 he was under great personal strain because his wife was suffering from a terminal illness.  That was tragic for him, and allowances must be made for it.  Nevertheless the episode leaves a most unpleasant taste in the mouth.

I add that Mr Constantine certainly knew that the document which he had supplied to Poseidon’s solicitors as being a letter written to him on 5 May 1994 was nothing of the sort.  I feel sure that he must also have known that Mr Pritchard’s statement of 24 November 1997 was incorrect.

C.	The facts in outline
Characteristically for this case, in which Mr Christoffer and Mr Constantine are in dispute about virtually everything, they are in dispute about when they first met.  Mr Christoffer says that, wanting to get into the film business as a script-writer, he introduced himself to Mr Constantine in 1987.  Mr Constantine says that he first met Mr Christoffer when Mr Christoffer came to his office in 1991.  I do not think that I need to resolve this particular conflict.  It is sufficient for me to make two findings of fact.

First, whether they met in 1987 or 1991, Mr Constantine at that stage took to the younger man, who was a fellow Greek Cypriot.  Mr Constantine liked him, and was willing to give him a chance to show what he could do as a script-writer.

Second, before 20 February 1992 Mr Christoffer had written a script for a short animated television film (intended for children) of the Cyclops story from the Odyssey, and the script was in the possession of Poseidon.  20 February 1992 is the date of the first document in evidence.  It is a letter from Mr Constantine to Mr Christoffer and includes these sentences:

“Meanwhile we have a good chance to make your idea on Odysseus.  There is a new commissioner for schools at Channel 4, and he liked your idea and the script ...”

Mr Christoffer said that he had written the script in 1986 and 1987 and Poseidon had had it since then.  Mr Constantine said (most of the time) that he had asked Mr Christoffer to write the script in 1991.  At one stage he talked about having got Mr Christoffer to write the script in 1994, but I am satisfied that Mr Christoffer’s first script was written well before then.  It may have been written in about 1987 (as Mr Christoffer says) or in 1991 (as Mr Constantine says), but either way it had been written in time to be shown by Mr Constantine to Channel 4 at some time before 20 February 1992.

I will revert to the facts so far as they concern the Cyclops in Part E below.  Mr Christoffer did not do much more work on that project during the period of his involvement with Poseidon.  He did do work on two other projects on and off between late 1992 or early 1993 and March 1995.  One project was writing scripts for episodes of the GBR (Global Bears Rescue) series.  The other was doing an updated rewrite of a film script which Poseidon had owned for some years but which had not been filmed.  Originally it had been called “The Untamed”, but it became re-entitled “The Diploma”.

The GBR series was a concept devised by Mr Constantine.  Each episode is an animated adventure story for children, lasting about 20 minutes and featuring a team of cartoon bear characters who are available to go anywhere in the world to defeat the wicked plots of evil-doers.  A number of episodes - I think so far thirteen - have been televised by the BBC, and more are planned.  Poseidon has used several script writers.  In late 1992 Mr Constantine told Mr Christoffer about the series and commissioned him to write some scripts.  The first documentary reference to a GBR script written by Mr Christoffer is a letter of 24 November 1992 from Mr Constantine, commenting on Mr Christoffer’s draft.  Mr Christoffer worked on GBR scripts with Mr Charalambous, who is his brother.  There is a dispute about whether Mr Constantine knew this.  Over the next two to three years they produced scripts for six episodes.  Three of the scripts more or less correspond to episodes which were filmed and have been shown.  The other three have not been used.  Mr Constantine’s evidence, which I see no reason to question in this respect, is that Poseidon has discarded them and will not use them.

The original script for The Untamed (which became The Diploma) was sent by Mr Constantine to Mr Christoffer under cover of a letter of 18 November 1993, referring to an earlier telephone conversation.  The letter said, among other things, that Mr Christoffer should not change the story but was welcome to change the dialogue to bring it up to date.  Mr Christoffer worked on it on and off until September 1994.  Mr Constantine’s evidence is that Mr Christoffer’s work on the script was of no value.  It has not been used, and Poseidon has no intention of using it.

Mr Christoffer never became an employee of Poseidon.  He worked on GBR and The Diploma as a freelance.  There are disputes about what the arrangements were for payment for his services.  A number of payments were in fact made by Poseidon to him, and I shall deal with them fully in the next Part of this judgment.

In 1992, when Mr Christoffer first started to work on GBR scripts, he was living with a relative in Chester.  The documents which have survived suggest that contacts between him and Mr Constantine were mainly by telephone and the post, rather than personal meetings.  There was a period in the summer of 1993 when he and his brother, Mr Charalambous, were in Cyprus, and a few letters passed between Mr Constantine in London and him in Cyprus.  He was back in Chester by the autumn of 1993, but at the end of November of that year he moved to Hastings to live with or near his ailing mother.  For a time he continued to work from home (home now being Hastings rather than Chester) on GBR scripts and The Diploma.  At some time in April or May 1994 he commenced working mostly at Poseidon’s offices in Wardour Street, London W1.  I think that this was at Mr Constantine’s suggestion.  He continued working in Wardour Street (still in a freelance capacity) until March 1995.  From time to time he used to spend the night in the office rather than going home to Hastings.

The end came early in March 1995.  There was a major row between Mr Constantine and Mr Christoffer.  The cause of it probably does not matter, and in any event is disputed.  For what it is worth, however, I record that there were two major sources of dispute between Mr Constantine and Mr Christoffer at the time.  One was that Poseidon had pressed ahead with making an animated film of the Cyclops story.  Mr Christoffer did not know about this, and when he found out he was very angry.  The other was that, there having been no written agreements recording the terms on which Mr Christoffer had been working for Poseidon, draft written agreements were produced in March 1995.  There are many disputed issues in connection with them.  I do not propose to go into the disputes.  It is sufficient to say that the draft agreements were seriously contentious, and were never signed.

At all events, after what seems to have been a blazing row in Mr Constantine’s office, Mr Christoffer cleared his desk and walked out of the building.  Bitter and unpleasant letters between Mr Christoffer and Mr Constantine followed in a matter of days.  Mr Christoffer engaged solicitors, and, after other intervening events which I need not describe, these cases and the hearing before me have been the result.

D.	Payments from Poseidon to Mr Christoffer
Since Mr Christoffer was not an employee of Poseidon no regular salary was paid to him.  However, from time to time payments were made by Poseidon to him.  There were, I think, nine amounting in total to £14,900.  The first was £500 on 6 February 1993.  The last was £800 on 2 February 1995.  The largest was £5,000 made on 15 September 1994.  There were no written agreements regulating what payments were to be made to Mr Christoffer or what was the legal basis on which they were to be made.  On one occasion a payment was made with a covering letter which said that it was in respect of the script of a GBR episode.  In many cases a note has been made on Poseidon’s cheque stub.  Mostly the note says “Bears”.  In one case it says “Diploma”.  I have also seen copies of Poseidon’s Cash Book and Purchase Day Book.

I make a number of findings about the payments.

First, none of the payments was a purchase price to Mr Christoffer for the copyright in his script of The Cyclops.  It is necessary for me to make this finding, because a part of Poseidon’s case is that Poseidon bought the copyright from Mr Christoffer for £500 and paid that amount to him.  In several witness statements Mr Constantine said that the first payment of all - £500 paid to Mr Christoffer on 6 February 1993 - was the price for the copyright in The Cyclops script.  Further, in a letter to Mr Christoffer of 20 March 1995 (written shortly after the final falling out) Mr Constantine wrote this:

“On my cheque stubs I found written “1st episode of Odyssey” £500.  The payment was made on 6/2/93, long before we started the Bears.”

This was totally untrue, and was either a deliberate lie or written in a spirit of wishful thinking and without any effort to check the truth.  There is indeed a cheque stub for £500 dated 6 February 1993.  Mr Constantine did not write on it “1st episode of Odyssey”.  He wrote “Bears”. Further, it is clear from the correspondence that Mr Christoffer had already written a script for a GBR episode called “The French Rejection”.  On 6 February 1993 Mr Constantine wrote to Mr Christoffer saying “Re The French Rejection.  Please find enclosed cheque for the above script for the Bears”.

When Poseidon’s case that the first £500 payment was for the Cyclops copyright collapsed it changed its ground. In Mr Constantine’s final witness statement he referred to a payment of £2,500 which had been made by Poseidon to Mr Christoffer on 2 October 1994.  He said that £500 out of the £2,000 was the purchase price for the Cyclops copyright.  There is no basis for this assertion at all.  The cheque stub simply says “writer”.  Poseidon’s Purchase Day Book ascribes the £2,500 to The Diploma.  I reject Poseidon’s assertion that £500 was paid, on 6 February 1993 or 2 October 1994 or any other date, for a purchase by Poseidon of the Cyclops copyright.

My second finding of fact is that none of the payments were loans from Poseidon to Mr Christoffer.  It is necessary for me to make this finding because in Claim No. CH 1999 P 002414 Poseidon asserts that payments of £5,000 made on 15 September 1994 and £1,700 made on 16 January 1995 were loans, and Poseidon claims repayment of them.  The only evidence that those payments were loans is Mr Constantine’s assertion that they were.  In my judgment they were not loans, and I very much doubt whether it is even open to Mr Constantine to give evidence that they were.  In Poseidon’s Purchase Day Book the £5,000 is attributed to The Diploma and the £1,700 is attributed to The Bears.  The Purchase Day Book is one of the sources from which Poseidon’s statutory accounts are derived.  I have no doubt that Poseidon’s accounts treated the two payments, not as loans, but as outright payments for services.  I equally have no doubt that Mr Constantine signed the accounts as director and has adopted them as shareholder.  I assume that Poseidon’s corporation tax liability was determined on the basis that the two payments were trade expenses which reduced the taxable profits, not loans which did not.

For the foregoing reasons I repeat my finding that none of the payments were loans.

My third finding of fact is a consequence of the first two.  All the payments, totalling £14,900 were payments from Poseidon to Mr Christoffer for writing services upon GBR scripts and upon the Diploma.

E.	The Cyclops
Poseidon has caused an animated film of The Cyclops to be made.  I have watched it.  I believe that it has been shown on television - on Channel 4 for an English language version and on the BBC for a Welsh language version.  Mr Christoffer says that this has been done in breach of his copyright in the script, and he claims relief accordingly.

One of Poseidon’s defences fails for a reason which I have already given.  Poseidon says that it purchased for £500 whatever copyright Mr Christoffer had in the script.  However, I have found that Poseidon did not pay £500 to Mr Christoffer for the Cyclops.  There is no other evidence to support an allegation that Mr Christoffer assigned his copyright to Poseidon.  That leaves Poseidon with two main defences: first that any script which Mr Christoffer wrote was not “original” in the sense of the Copyright, Designs and Patents Act 1988 so that there was no copyright in it; second that the film which was made did not involve any copying, or any sufficient copying, of Mr Christoffer’s script, so the film cannot have been an infringement of any copyright which Mr Christoffer did own.  I do not agree with either of these defences.

The facts on the basis of which I have to determine this part of the case are quite difficult to disentangle.  They have to be derived mostly by inference from the documents, without much help from the oral evidence.  Mr Constantine’s oral evidence is too unreliable for me to place much weight on it, and for the most part Mr Christoffer did not know what was happening.  If I examined every contentious point this judgment would become interminable.  I describe in the following paragraphs my evaluation of the facts, on the basis of which I shall then seek to apply the law as I understand it.

1.	At some time before the start of 1992 - possibly as early as 1986 or 1987 - Mr Christoffer had written a script for an animated version of The Cyclops.  I shall consider later whether copyright subsisted in the script.  My conclusion will be that it did.
2.	Poseidon was in possession of the script with Mr Christoffer’s consent, but there never was any agreement for Poseidon to buy the copyright from Mr Christoffer.
3.	Mr Constantine proposed an Odyssey series to BBC Wales and sent Mr Christoffer’s script to indicate what the episodes would be like.  Mr Constantine was also in touch with Channel 4 about the concept.
4.	BBC Wales decided to proceed to the extent of contracting with Poseidon for the production of a 15 minute pilot programme. There is an agreement about this dated 17 February 1994.  The BBC was to make various payments, including £5,000 “towards research and script development”.
5.	Mr Constantine knew very little about what was going on, but the documents show that in early 1994 he did a redraft of the script.  Mr Constantine wrote to him about it.  Mr Constantine had a few criticisms, but he ended with: “The script is good. ...  It needs a little work at the beginning but otherwise it is ready”.
6.	Poseidon set about preparing a rough pilot episode to show to the BBC.  A stage preliminary to the preparation of an animation is that an artist draws story-boards.  These are rather like the series of pictures in an children’s comic book.  The artist does a drawing for each of the stages in the story, showing the sequence within which the animators will make the film.  There was an artist working at Poseidon called Simon Bradfield.  He drew the story-boards.  He did so working from one of Mr Christoffer’s scripts.  This seems to have been happening at around the time (April or May 1994) when Mr Christoffer started working at Poseidon’s offices rather than at home in Hastings.  From time to time Mr Bradfield consulted Mr Christoffer about the script and the story-boards, though I think that at this time Mr Christoffer was working mainly on The Diploma.
7.	I do not know exactly what happened about the making of a rough pilot version of The Cyclops.  There are letters from Mr Constantine to BBC Wales saying that it would be available by the end of August and implying that it was being made in Russia.
8.	Whether or not a rough pilot version was made in 1994, the final animated version of The Cyclops was made in 1995.  The animation work was carried out in Liechtenstein by a company called Vilanima.  There was a writer and artist at Vilanima called Askinis.  Poseidon made an agreement with him on 15 April 1995.  It recited that Poseidon intended to produce a series of films based on the Odyssey.  Mr Askinis gave evidence in the form of a witness statement.  He said that he first met Mr Constantine in September 1994.  They discussed the prospective animation projects which Mr Constantine wished to produce.  The first job they discussed was a pilot episode of The Cyclops.  As I read Mr Askinis’s statement, the contracts for the animation work to proceed were not signed until March or April 1995, so I take it that the final film must have been made after then.
9.	The documents show that Mr Asinis or another artist at Vilanima drew a new set of story-boards.  However, he was supplied with the story-boards which Mr Bradfield had drawn, derived from Mr Christoffer’s script.  Most of the new story-boards are in essence a re-drawing, in the hand of the Lithuanian artist, of the story-boards which Mr Bradfield had drawn the year before.
10.	What happened to the script?  The detailed text of the script for the final film is not the same as the detailed text for any of the versions of the script which Mr Christoffer produced.  However, I believe that it was in a very real sense derived from Mr Christoffer’s script, the sequence of which it follows very closely.  The final script was written by another writer called Jack Pitman.  He gave evidence and explained that he was given by Mr Constantine a script written by another writer and was asked to rework it, in particular by livening up the dialogue.  He summarised his instructions in these words: “Don’t play with the plot.  Just do something with the dialogue”.  The short written agreement between Poseidon and Mr Pitman is dated 2 May 1995.
11.	Pausing at this point, the final animated film was derived from (1) the story-boards drawn by Mr Askinis or another Lithuanian artist, and (2) the script written by Mr Pitman.  The story-boards drawn by Mr Askinis or another Lithuanian artist were derived from the story-boards drawn by Mr Bradfield, which had themselves been derived from a script written by Mr Christoffer.  The script written by Mr Pitman was derived from the script which had been supplied to him by Mr Constantine.  I need to consider what script that was.
12.	Mr Constantine’s evidence was that, when in May 1994 he received a manuscript letter from Mr Pritchard of BBC Wales which (according to Mr Constantine, but not according to Mr Pritchard’s oral evidence) rejected Mr Christoffer’s script, he (Mr Constantine) discarded Mr Christoffer’s script and rewrote the whole script himself.  It was the new script written by himself which he gave to Mr Pitman.  I regret that I do not accept this.  The documents include several versions of a script written by Mr Christoffer.  They also include the script as written by Mr Pitman.  They do not include anything purporting to be a script written by Mr Constantine.  Mr Constantine may have made a few small changes to Mr Christoffer’s script before passing it on to Mr Pitman, but I do not accept that he wrote a whole new script himself.  Mr Pitman’s evidence was only that he understood that the script supplied to him was by “another writer”.  He had no recollection of Mr Constantine saying to him anything to indicate that it was a script written by Mr Constantine himself.  My perception of Mr Constantine is that, if he had written the script himself, he would certainly have told Mr Pitman so.
13.	I therefore consider that the script supplied to Mr Pitman was a script written by Mr Christoffer, with or without a few amendments made by Mr Constantine.

I now turn to the law.  The first question is whether Mr Christoffer’s script was an original literary or dramatic work such that copyright could subsist in it.  I consider that it was.  There are two major points to make.

First, the fact that the original story of the Cyclops was written by Homer (whoever he may have been) and was presumably an original work when it was written does not prevent a reworking of it by a modern writer from itself being an original work within the meaning of the Copyright, Design and Patents Act 1988.  “Original” in this context does not imply an examination of a work’s literary quality.  The question in essence is whether it originated from the person who claims to be the author.  Mr Christoffer’s script originated from him, and is not prevented from having done so by the fact that there is another sense in which it can be said to have originated from Homer.  I express no view on whether the originality requirement would have been met if Mr Christoffer had done nothing more than write a summary of the Homer story.  It may or may not have been, but in any case Mr Christoffer did more than that.  In terms of story, the core of Mr Christoffer’s script is the same as Book IX of the Odyssey, but there are many variations of detail.  In terms of presentation, setting out someone else’s narrative story in the form of a script suitable for filming manifestly involves original work.  It may be done well or badly, but either way the writer puts his own effort into it and creates a work which did not exist before.

Second, I do not accept a submission made on behalf of Poseidon that Mr Christoffer’s script was lifted by him from the text of a children’s book published by Brimax Books.  Mr Constantine said that he gave Mr Christoffer a copy of the book.  Despite passionate assertions by Mr Constantine to the contrary, I think that there are numerous differences between the script and the Brimax book, and that, reading them side by side, one does not emerge with the belief that the writer of the script must have been taking it from the book as he went along.  Further, the thesis that Mr Christoffer copied the script from the book does not fit with the dates.  Even if I accept Mr Constantine’s evidence of when Mr Christoffer came to write the script I would proceed on the basis that Mr Christoffer was writing it, or most of it, in 1991.  It certainly seems to have existed before 20 February 1992 (when Mr Constantine referred to it in a letter to Mr Christoffer).  The copyright year in the Brimax book is 1992.  It is wildly improbable that the book had been published in time for Mr Constantine to have bought it and given to Mr Christoffer, and for Mr Christoffer to have used it to provide himself with the material for the script.

I should briefly record Mr Christoffer’s evidence about the Brimax book.  He said that he saw it in a bookshop in Eastbourne in early 1994, years after he had written the script.  He liked the illustrations in the book, and thought that they could be a useful model for an animated version of his script.  So he bought it and gave it to Mr Constantine.  I am inclined to believe Mr Christoffer’s account.  I add for completeness that Poseidon did in fact acquire the TV animation rights in the Brimax book, but the agreement is dated 3 November 1997, long after the film had been made.

I move on.  On the basis that Mr Christoffer did have copyright in his script, did the events which I have described, culminating with the making of the animated film which has been shown on television, constitute an infringement of his copyright?  By section 16(1)(a) and (e) and (2) of the Copyright, Designs and Patents Act 1988 it is an infringement of copyright in a work to copy or make an adaptation of the work as a whole or of any substantial part of it.  Further, the copying or adapting can be direct or indirect: either way it is an infringement: section 16(3).

Although there is no copyright in an idea, but rather the copyright is confined to the expression of the idea, it does not follow that, merely because the words in the final script (Mr Pitman’s script) were different from Mr Christoffer’s words, therefore there can have been no copying.  In the context of a literary work the concept of copying embraces taking the content of the work, or of a substantial part of it, and reproducing it, whether or not the alleged infringer reproduces the content by using the original author’s words or by using his own words.  Copying is not confined to what Brightman J called “language copying” in Ravenscroft v. Herbert, [1980] RPC 193.  There was some language copying in that case, but there were other infringements where the defendant had reproduced the content of the plaintiff’s work though he changed the way in which it was expressed.  Brightman J summed the matter up as follows (at p 207):

“... [the defendant] has deliberately copied the language of the plaintiff on many occasions.  To a more significant extent he has adopted wholesale the identical incidents of documented and occult history which the plaintiff used in support of his theory...”.

The same point is illustrated by Harman Pictures NV v Osborne [1967] 1 WLR 723.  The case concerned the copyright in Miss Cecil Woodham Smith’s much admired book about the Charge of the Light Brigade, “The Reason Why”.  The defendant, the celebrated playwright John Osborne, had written a film script which the plaintiff alleged was based on the book.  Obviously the words of John Osborne’s script were not taken verbation from the book, but Goff J held (on an interim application) that there was a prima facie case of infringement.  He asked this question (at p 736):

“... did John Osborne ... use the book as a basis, taking his selection of incidents and quotations therefrom, albeit omitting a number and making some alterations and additions ...?”

If the answer was yes, there was an infringement.

Applying these principles to the facts which I have found it seems plain to me that Poseidon, by causing the animated film of The Cyclops to be made, infringed Mr Christoffer’s copyright in his script.  The processes which led up to the completed film included direct and indirect copying and adaptation of  Mr Christoffer’s script - his “literary work”.  This happened both through the story-boards and through the script.  In the case of the story-boards the chain went from (i) Mr Christoffer’s script to (ii) Mr Bradfield’s story-boards, to (iii) the Lithuanian artist’s story-boards, to (iv) the animated pictures seen in the film.  In the case of the script the chain went from (i) Mr Christoffer’s script to (ii) (possibly) that script with a few amendments by Mr Constantine, to (iii) Mr Pitman’s script, to (iv) the finished film.

I therefore conclude that, as regards the Cyclops, Mr Christoffer’s claim succeeds in principle.  It was, I think, agreed between counsel that questions of the consequential relief should be left over to be considered after I had dealt with the principle of whether liability is established or not.  At this stage I say only this.  Mr Bishop says that Mr Christoffer is entitled to an injunction to restrain further infringements and to either an inquiry as to damages or an account of profits.  In principle I believe that those consequences must follow.  In addition Mr Bishop seeks additional damages, commonly referred to as “flagrancy” damages, under section 97 of the 1988 Act.  Mr Matthias, on behalf of Poseidon  did not present submissions on that issue, since, naturally enough, his case was that there should be no damages at all.  I will reserve the question of whether there should be any flagrancy damages and, if so, of what amount, until counsel have had the opportunity to address me on that in the light of this judgment.

F.	Global Bears Rescue (GBR) and The Diploma
I can deal with these two projects together, since it is now accepted that the copyrights in all GBR scripts on which Mr Christoffer and Mr Charalambous worked belong to Poseidon.  It has always been accepted that the copyright in The Diploma belongs to Poseidon.  So both for GBR and the Diploma the major question is: what amounts were payable by Poseidon to Mr Christoffer for his writing services?  In relation to GBR there is the extra question of whether Mr Christoffer’s brother, Mr Charalambous, was entitled to share in the amounts payable for writing services.  In the first instance I shall ignore that point, but I will return briefly to it later.

There are no written agreements or other documents recording the terms of payment.  There was a straight conflict of evidence over what was agreed orally.  As regards GBR scripts (of which Mr Christoffer and Mr Charalambous wrote six), Mr Christoffer said that in a telephone conversation at some time in 1992 Mr Constantine agreed to pay for each script £2,000 plus 2½%.  He was not clear what the 2½% was meant to be 2½% of, but contended that it was 2½% of the production budget.  Mr Constantine said that the agreed fee was £500 per script, but that in early 1995, after the first three scripts which Mr Christoffer had written but before the last three, he increased it to £1,000; by then it had become clear that the GBR series was going be successful.

As regards The Diploma, Mr Christoffer said that, in a meeting in Mr Constantine’s offices during the Easter bank holiday in 1994, Mr Constantine agreed to pay him a fee of £20,000.  Mr Constantine’s evidence was that the agreed fee for the Diplomas was £1,500.

The first point to make is that I do not accept Mr Constantine’s evidence on either GBR or The Diploma.  This follows from my findings in Part D above that one of the payments totalling £14,900 which Poseidon made to Mr Christoffer were either the purchase price for the copyright in the Cyclops or loans.  All the payments were payments for writing services on GBR or The Diploma.  Mr Christoffer is therefore entitled to retain the whole of the £14,900 (unless he is liable to share part of it with Mr Charalambous).

However, the second point which I make is that the £14,900 is all that Mr Christoffer is entitled to.  I do not think that he has made good his case that, on GBR, he was entitled to a total of £12,000 (six scripts at £2,000 each) plus, perhaps, a further 2½% of some undefined amount, or that, on the Diploma, he was entitled to £20,000.  On both of those issues the burden rests on him, and I do not think that he has discharged it.  He was measured and clear in his oral evidence, but there is no corroboration of it and there are several factors which cast doubt upon it.

As respects GBR, on several occasions when Mr Christoffer delivered a script he was sent a Poseidon cheque for £500.  On at least one occasion there was a covering letter which said that the cheque was in respect of the GBR script.  He never wrote back, or communicated with Poseidon in any other way, asking where the other £1,500 was.  Further, other script writers, including Mr Pitman, confirmed in evidence that their agreed fees for GBR scripts were £500 per script.  However well disposed Mr Constantine may have been initially to his young and ambitious compatriot, Mr Christoffer, it would have been remarkable for him to have agreed to pay to a new and untried script-writer four times as much as he had agreed to pay to an experienced writer like Mr Pitman.

The 2½% element in Mr Christoffer’s evidence about the agreed payments for GBR scripts was wholly imprecise, and I think that in the end Mr Bishop virtually conceded that he could not make that part of Mr Christoffer’s case good.  In my view he equally cannot make good the case that the fixed fee was £2000 per episode.

As regards The Diploma I accept Mr Constantine’s evidence that he did not ask Mr Christoffer to do a major amount of rewriting, even if in the event Mr Christoffer did more than Mr Constantine had asked for, and that £20,000 would have been way in excess of a normal fee for the work expected.  Mr Christoffer stopped work on the Diploma in September 1994.  He did not say that Poseidon owed him more money for it until after he had fallen out with Mr Constantine in March 1995.  The matter was first mentioned in a letter of 23 March 1995 from Mr Christoffer’s then solicitors, Biddle & Co.  They wrote that the agreement was for a fee of £20,000 “on the first day of principal photography of the production”.  Since there has never been a first day of principal photography of any production, and according to Mr Constantine never will be, this would mean that no payment was ever owed by Poseidon to Mr Christoffer for The Diploma.  Mr Christoffer said that Biddle & Co had got it wrong, and that he had never said to them that his fee of £20,000 did not become payable until principal photography commenced.  What Mr Christoffer says might be true, but I think that it is at least as likely that Biddle & Co accurately reproduced the instructions which their client, Mr Christoffer, had given them.

Therefore on both GBR and The Diploma I conclude that Mr Christoffer has not made out his case that further amounts remain payable to him by Poseidon.  I suspect (although neither witness put it this way in evidence) that, when Mr Constantine asked Mr Christoffer to write GBR scripts, and later to work on The Diploma, it was understood between them that payment would be made but no specific amounts were agreed.  When Mr Christoffer was still working from home and sent a GBR script to Poseidon, Poseidon sent him a cheque for £500 and he accepted it.  After he started to work at Wardour Street, I think it likely that from time to time he asked Mr Constantine for money, and that payments of varying amounts were made to him and accepted by him, for whatever writing he was engaged on at the time.

In the circumstances Mr Christoffer is entitled to keep the £14,900 which he has already received, but I dismiss his claims in so far as they seek judgment for additional sums on top of the £14,900.

G.	Residual issues concerning GBR
There are two remaining matters which I must deal with in connection with GBR.

G.1.	The position of Mr Charalambous 
Mr Charalambous is a joint claimant with Mr Christoffer in Claim No. CH 1996 C 4128 the claim in which it is asserted that Poseidon owes more than it has paid so far for writing services on GBR.

Since I have concluded that Poseidon does not owe more than it has paid, the claims of both Mr Christoffer and Mr Charalambous fail anyway.  I would, however, not have given any judgment in Mr Charalambous’s favour.  I accept that he did work on the GBR scripts, and it may be that he was entitled as against his brother, Mr Christoffer, to a share of the GBR payments made by Poseidon to Mr Christoffer.  But in my view the contract was solely between Mr Christoffer and Poseidon.  Such rights as Mr Charalambous had were rights against Mr Christoffer.  He had no rights against Poseidon.

G.2.	Identification as authors
The second matter arises from section 77 of the Copyright, Designs and Patents Act 1988. That section lays down as a general rule that the author of a copyright work has the right to be identified as such when the work is (among other things) broadcast.  Mr Christoffer and Mr Charalambous say that they were authors of six GBR scripts, that three of them were made into animated films and have been shown on television, and that the credits at the beginning and end of the films did not identify them as authors.  For example, one such film which I have watched says that the writer was Frixos Constantine.  Mr Charalambous and Mr Christoffer submit that it should have said that they were the writers, and that by failing to do so it infringed their statutory rights under section 77.  They seek injunctions requiring Poseidon to identify them as authors.

In my view, however, this claim fails.  It omits to take account of the last part of section 77(91) and of section 78.  Section 77(1), after stating the general rule that an author has a right of identification, continues:

“but the right is not infringed unless it has been asserted in accordance with section 78.”

Section 78(2) provides that an author’s right of identification may be asserted either in an instrument of assignment of the copyright or by instrument in writing signed by the author.  (In my view one these two alternatives must be satisfied whether the right is asserted generally or whether it is asserted in relation to any specified act or description of acts.)  Mr Christoffer and Mr Charalambous have not asserted their identification rights in either of those ways.  Therefore, even if they are authors of three of the scripts which have been filmed (which they probably are, although Poseidon does not admit it), Poseidon has not infringed their rights under section 77.

H.	The conversion actions
Miss Paik was Mr Constantine’s personal assistant and secretary.  She continued to work for Poseidon after Mr Christoffer had left.  She was, and has remained, on friendly terms with Mr Christoffer.  Mr Constantine says, and I accept, that several documents disappeared from Poseidon’s files. Poseidon invites me to find that Miss Paik removed them, that in one case she faxed a copy of the document to Mr Christoffer, and that in the other cases she passed on the documents themselves to Mr Christoffer. Poseidon says that by these events both Miss Paik and Mr Christoffer committed the tort of conversion.

The claim brought against Miss Paik is another illustration of Mr Constantine’s erratic and unpredictable shifts of conduct.  On 24 June 1999 - about a week before the trial began - Mr Constantine wrote to Miss Paik.  The letter included this passage:

“Sabrita, I have to-day decided to instruct my Solicitors to drop the case against you personally at the High Court.  It would only create more bitter feelings.”

However, on 1 July 1999 Poseidon’s solicitors wrote to Miss Paik saying:

“Further to the letter written to you by Mr Constantine dated the 24th June 1999, his offer concerning discontinuance is withdrawn.”

In my opinion this conversion claim is trivial, and is being pursued solely out of motives of vindictiveness.  I am not prepared to occupy time and space going into it at any length at all.  I merely say the following.

As regards the claim against Miss Paik, although she and Mr Christoffer deny that she removed documents from Poseidon’s files, I find on a clear balance of probabilities that she did.  Plainly she ought not to have done, but what consequences follow?  I am not a magistrate trying a criminal prosecution for theft.  I am a civil judge trying a claim for damages.  Damages for conversion have to be compensation for loss suffered.  I have considered the particular document which Miss Paik is said to have removed.  In my judgment Poseidon suffered no quantifiable loss from removal of them.

I will give Poseidon judgment against Miss Paik for conversion.  I award nominal damages of £1.

As regards the claim against Mr Christoffer, he disclosed to his solicitors and counsel the documents which he had received.  They were returned to Poseidon.  In the circumstances, although Mr Christoffer did not tell his solicitors immediately when the documents came into his possession, I do not think that a case of conversion of the documents is established against him.  The conversion claim against Mr Christoffer is dismissed.