Paddington gives Spitting Image a stern, hard stare

Paddington Bear is a British icon introduced to the public in 1958 by author Michael Bond, known for his politeness, optimistic attitude, and well-meaning nature. Kind-hearted, trusting, and fond of marmalade sandwiches, he has starred in films that have been popular worldwide. 

Paddington and Company Limited, Studiocanal Films Ltd (the producers of the hit Paddington films), and Others have just issued High Court proceedings against the producers of the satirical TV show Spitting Image (Avalon Television Limited), in which they appear to be complaining about a YouTube video. The video features a depiction of Paddington swearing, boasting about his cocaine use, sniffing a large pile of white powder, and promoting guns and robot sex toys, all certainly unbefitting of the Paddington many know and love. The video has reached nearly 600,000 views at the time of writing.

The proceedings are at a very early stage, with the BBC and Deadline reports suggesting that the claims are for copyright and design right infringement. The claim form is not yet publicly available.

If correctly reported, it will be intriguing to see how these proceedings unfold given the limitations of those IP rights.

Registered design rights are subject to a strict 25-year limitation period. Unregistered design rights last for a maximum of 15 years (usually only 10). For these reasons, the copyright claim will likely be the key battleground for the parties.

Though, for copyright, there is an exception allowing use of limited amounts of copyright material without the owner’s permission for the purpose of “parody, caricature or pastiche”, so long as it is “fair dealing.”

Notably, Spitting Image is not using an exact image of Paddington Bear, so there will be a discussion around whether the characters are similar enough to constitute copyright and/or design right infringement. For instance, Spitting Image’s Paddington appears far more dishevelled, with bulging eyes and a mock-South American accent.

The other available action for Paddington would be a passing off claim, arguing that the public would mistakenly believe that the clip originates from, or is authorized by, the owner of the right. Given the content of the clip, this seems highly unlikely; the public will undoubtedly understand it to be a parody. If reports are accurate, that explains why a passing off claim has not been included in the claim form.

In contrast, the company behind an unauthorized interactive dining experience based on the BBC comedy series “Only Fools and Horses” (OFH) was found liable for passing off as they used the same characters, language, jokes, and backstories as in the original series, all without permission, and members of the public indicated that their experience was similar to watching the show. In that case, the Court also found that there was copyright infringement. Interestingly, the Court decided that there can be copyright in fictional characters themselves, such as Del Boy, rather than just in the OFH scripts. This aspect of the judgment might be helpful in Paddington’s case, showing that the character of Paddington himself is subject to copyright protection.

The parody defence in the OFH case did not apply to the copyright infringement claim as the dining experience organizers’ use did not constitute “fair dealing.” The Court highlighted that the experience potentially competed with the claimant’s own exploitation of the works, as the copyright owners were establishing an OFH theatre production in the same city as the dining experience, and emphasized how similarly the characters were portrayed.

In general, it is hard to restrain true parodies of copyright works. The parody “fair dealing” exception to copyright found in the Copyright, Designs and Patents Act 1988 allows copyright works to be utilized so long as the parody is “noticeably different” and the primary purpose for which it is used is to poke fun at or critically comment upon the original.

There is no established parody defence for the infringement of registered and unregistered designs, so the defendant may need to argue that its character is not similar enough for any infringement. 

Given the parody exception to copyright and the fact that the Paddington case is missing some of the compelling aspects of the OFH case, it seems like this might be a challenging one for the claimants to win.

Seemingly unfazed and unrelenting, Spitting Image has responded with a video of Paddington Bear using the legal papers issued as a utensil to snort drugs and to wipe his faeces, which he then produces for all viewers to see. Spitting Image’s bold response is a classic example of how defendants can use a claim brought against them to generate additional publicity. 

However, it should be noted that in the response video, Spitting Image’s Paddington has lost his signature blue duffle coat and red hat and is instead portrayed in merely a ragged shirt. This change may suggest that Spitting Image is more worried about the claim against them than they are willing to publicly admit. 

Oblivious to the controversy, Paddington Bear can be found happily eating a marmalade sandwich on a bench outside of Ionic Legal’s office in Manchester.

Form your own view by reviewing the full video here.

Find Spitting Image’s irreverent response to the legal proceedings here.

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