Duncan v Australian Broadcasting Corporation
[2023] FedCFamC2G 993
•6 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duncan v Australian Broadcasting Corporation [2023] FedCFamC2G 993
File number(s): MLG 3418 of 2020 Judgment of: JUDGE BAIRD Date of judgment: 6 November 2023 Catchwords: INTELLECTUAL PROPERTY – COPYRIGHT – children’s animated television programs – applicant asserts authorship of literary, dramatic and artistic works and cinematograph films for children’s animation series ‘Buster the Brave Little Wooden Boat’ and ‘Buster and Jack series’ – applicant claims infringement of copyright by respondent’s broadcast of its children’s animated television series ‘Bubble Bath Bay’ (also ‘Sydney Sailboat’) – common subject matter – characters are anthropomorphic boats, a bird and other animals, with adventures set in a harbour environment – applicant alleges infringement of whole or substantial part of her works and films – respondent denies copyright infringement – no objective similarity – asserts its television series independently created without copying – applicant has authorship, and ownership in some but not all claimed works and films – held no infringement – no objective similarity – no causal connection – ideas, concepts, themes only – held respondent’s television series ‘Bubble Bath Bay’ was independently created – applicant’s claim dismissed Legislation: Copyright Act 1968 (Cth) ss 10, 13, 14, 21, 22, 31, 32, 35, 36, 86, 90, 98, 101, 115, 119, 126B, 127, 131, 198 Cases cited: Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138; (1999) 87 FCR 415; 43 IPR 1
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197; 172 FCR 580
IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458; 80 IPR 451
Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404; 67 IPR 46
Tamawood Limited v Habitare Developments Pty Ltd [2015] FCAFC 65; 112 IPR 439
Telstra Corporation Ltd & Anor v Royal & Sun Alliance & Anor [2003] FCA 786; 57 IPR 453
Zeccola v Universal City Studios Inc (1982) 46 ALR 189
Division: Division 2 General Federal Law Number of paragraphs: 279 Date of last submission/s: 8 May 2023 Date of hearing: 21-25 February 2022, and 19 July 2022 Place: Sydney Applicant Ms A Duncan on behalf of herself Counsel for the Respondent: Ms N Hickey Solicitor for the Respondent: Ms K Daley, Australian Broadcasting Corporation ORDERS
MLG 3418 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANNIE DUNCAN
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
6 NOVEMBER 2023
THE COURT:
1.DISMISSES the application.
2.STANDS OVER the proceeding to a date to be advised after consultation with the parties, for hearing on the issue of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BAIRD
INTRODUCTION
This case concerns a children’s animated television program about a little boat and his friends and their adventures that take place in and around a harbour setting.
The applicant, Ms Annie Duncan, alleges that the respondent, the Australian Broadcasting Corporation (ABC), by broadcasting the children’s animated television show ‘Bubble Bath Bay’ (episodes of which were subsequently broadcast under the name ‘Sydney Sailboat’) has infringed Ms Duncan’s copyright in one or more of 3 works/subject matter: two script proposals for a children’s animated television show titled ‘Buster the Brave Little Wooden Boat’ - the first submitted to the ABC in about August 2009, and the second to Screen Australia in January 2011, and the children’s animated television series titled ‘Buster & Jack series’ broadcast on Community Television in late 2014 - commencing in Sydney in October 2014, and thereafter also Adelaide, Melbourne and Brisbane (collectively in these reasons, the Works).
The ABC denies infringement, says that Bubble Bath Bay is not objectively similar to any of the Works in the sense contemplated by copyright law, and says further, that Bubble Bath Bay was an independently created children’s animated television series made without copying and without reference to Ms Duncan’s Works or any of them.
Overview - parties’ contentions and disposition
Ms Duncan says that Bubble Bath Bay bears a substantial resemblance to the Works. In her written closing submissions she submits that:
Both series bear substantial resemblance to each other. There is a breach of copyright in eleven different areas; (i) original concepts and (ii) creative ideas; (iii) characters line up, (iv) the setup of environment, (v) characterisation, (vi) dialogue and (vii) storylines. The claim, due to the inclusion of Animatic Scenes and Animated Episodes also includes (vii) cinematography, (ix) direction of shot; content within frame, (x) camera movement and (xi) editing sequences.
I have inserted Roman numerals in the above as an aid to identifying what Ms Duncan contends are the 11 areas of alleged infringement. In oral closing submissions Ms Duncan clarified that within the concept ‘characterisation’ Ms Duncan includes ‘personification’, and within ‘storylines’ she includes ‘scenes as examples of dramatic sequence of events’. Ms Duncan’s submission above exemplifies her approach throughout the proceeding and at hearing of searching for and picking out discrete elements, concepts, themes or ideas she considers present in one or other of the Works (or in a part of a Work), and seeking correspondences in one or other discrete elements, concepts, themes and ideas she discerns one or more frame(s), scene(s), episode(s), or part(s) of Bubble Bath Bay, which she submits are similar or analogous. In doing so, she combines diverse instances from one or other or more of the Works. This is impermissible. Ms Duncan did not present to the Court a coherent one‑to‑one‑comparison between the form of expression in a single Work (or a substantial part of the one Work), and in Bubble Bath Bay.
The ABC submits that the proceeding ought to be dismissed. It submits that Ms Duncan’s case is concerned with ideas, concepts or themes, unprotectable under copyright, and not the particular working out or expression of an idea or theme given material form which is the proper subject matter of copyright protection.
The ABC says the asserted commonalities are generic and stereotypical. It submits that the Works and Bubble Bath Bay have in common no more than largely generic ideas and concepts such as (a) anthropomorphism; (b) the protagonist being a boat; (c) the harbour and water as a setting; and (d) some generic features, characters, events, themes and animal life consistent with telling a children’s story in a harbour/water setting. The ABC submits there are also many differences.
The ABC says its dealings with Ms Duncan were limited, her submissions did not inform the creation of Bubble Bath Bay. It says the series is based on a creative concept dating from 2002 created and first developed by Mr Gareth Eden‑Styche, which was taken up, developed and promoted by Essential Media and Entertainment Pty Ltd to the ABC from October 2008, and thereafter further developed and produced by Essential Media in association with the ABC, principally in the period from early 2011 through 2013, and first broadcast around March 2015.
For the reasons that follow, Ms Duncan’s claim must be dismissed.
THE PARTIES
Ms Duncan is, inter alia, an educator, animation writer and designer. She has written and performed in plays since a teenager. So far as can be discerned from her evidence Ms Duncan first trained as a media and drama teacher, obtaining a Bachelor of Education. In 2008, having sold a product design business, she completed 3 years re‑training in computer animation, obtaining a Certificate 4 / Advanced Diploma in Multimedia animation from Box Hill TAFE, in Victoria.
Ms Duncan has at all times represented herself in the proceeding. It appears that at some earlier time, Ms Duncan had some legal assistance, in making one or more of at least 5 Freedom of Information (FOI) requests of Screen Australia, the ABC, and possibly other entities, regarding the subject matter of the proceeding.
The ABC is Australia’s national public broadcaster, inter alia, providing television services throughout metropolitan and regional Australia. Among the television services it provided in the relevant period were ‘ABC2’, a television channel for pre‑school aged children 2‑5 years old (which became the television channel ‘ABC Kids’), and ‘ABC3’, launched in December 2009 with a target audience of school‑aged children 6‑12 years (subsequently, ‘ABCME’).
In the period 2009 – 2014, the ABC co‑commissioned, and participated in the development (principally 2011 to 2013) and production with Essential Media of, Bubble Bath Bay. In 2015, the ABC broadcast Bubble Bath Bay nationally on its television channel ‘ABC Kids’.
OVERVIEW OF THE WORKS AND THE ALLEGED INFRINGEMENT
The Works
The Works are envisioned as an animated 2 dimensional (2D) or moving story book television series for pre‑schoolers 3 to 6 years old. As I describe further below, and return to later in these reasons, through 3 iterations, the Works document the development of the animation concept:
(1)in 2009, in a simple script proposal titled ‘Buster, the Brave Little Wooden Boat’ for 26 short (5 minute) 2D animated episodes accompanied by several 2D line colour illustrations of the 6 principal and secondary characters (Work 1);
(2)in 2011, in a second, more detailed submission, also titled ‘Buster, the Brave Little Wooden Boat’, comprising storyboards (text and visual images) for 13 x 5 minute 2D animated episodes and an overview description (text with illustrations of the characters) of the proposed animation, environment, characters, camera shots, style and design elements, with an accompanying DVD containing 6 mp4 video files - ‘animatics’ - for a title sequence, 2 scenes and 3 of the episodes (described as ‘a work in progress’) (Work 2);
(3)thirdly, in the realisation of the concept in a children’s animated (2D ‘moving story book’) television series of 6 episodes titled ‘Buster and Jack series’ broadcast on Community Television Channel 44 in late 2014 (Sydney, Adelaide, Melbourne and Brisbane), of which 4 episodes are in evidence (Work 3).
The Works are each set in an open harbour and its environs (the mainland, the island, jetty, and the water surrounding them). The two central characters in each of the Works are the protagonist ‘Buster’ and his best friend ‘Jack’. Buster is a young, little wooden boat with an engine. He has an important job, ferrying people between the Island and the Mainland. His best friend is Jack, a seagull, who is very good at baking cakes, and repairing things. Jack is a retired engineer, with one leg (Work 1), although in Work 3, he has 2 legs. Although their characters remain substantially the same in each of the Works, through the course of Work 1, Work 2 and Work 3 Buster’s and Jack’s appearances and features variously evolve or change, and style signifiers are added or varied (e.g., in Work 2, Buster acquires a simple triangular crane and a red tool box on his deck, and in Work 3, a striped awning, cap and anchor, in Work 2 Jack is dressed with goggles, and occasionally a scarf, which look different in Work 3). Throughout each Work Buster remains an earnest, diligent young worker; Jack is an older character in Work 1, but appears progressively younger in each subsequent Work.
The following illustrations of Buster and Jack from each of Work 1, Work 2, and Work 3 well illustrate their features and how they change:
(Work 1 – Buster)
(Work 1 – Jack)
(Work 2 – Buster and Jack)
(Work 3 – Buster and Jack)
Other regular characters depicted in the Works are ‘Peter’ the hermit crab - a builder; ‘Little Bob’, the artist cat (Work 1) - subsequently ‘Lil’, the artist cat (Works 2 and 3), and two young seals, ‘Meg’ and ‘Oliver’ (in Work 1, the seals are an older sister, and her younger brother; in Works 2 and 3, they are twin seals; in Work 2, episode 7 they are referred to as ‘Nancy’ and ‘Boo Boo’). Other named semi‑regular anthropomorphic beings described/ illustrated are ‘Betty’ the dolphin, a mother Killer Whale (so titled, but not given a proper name), and her calf ‘Max’, and a mean alley cat.
Human beings also appear in Works 1 and 2 (in written description and in drawings). The only human being given a title (and he does not have a proper name) is the ‘Harbour Master’, who is referred to as a male, and in Work 2 commonly depicted as a radio (or the silhouette of a man) and in Work 3 also as a walrus (and is given speech in a male or approximation of a male voice).
People are otherwise referred to generically in one or more individual episodes of Works 1 and 2:
(a)in Work 1 as people, a mother, a boy, a girl(s), a swimmer, fireman, fishermen, bank robbers, the police, artists, an army general (in episode 20 - described as inspecting two submarines in maintenance) a bridal party, a local choir;
(b)in Work 2 as people, families, children, bank robbers (drawn as silhouettes), police, fireman, passengers, villagers.
There are no people in Work 3. The bank robber is a cat. The police are frogs.
A ghost ship appears in an episode in Work 2 (episode 12 in the storyboard, and as an animatic) and in Work 3 (episode 3). The ghost ship is called ‘Amelia’ in Work 2, and ‘Rose’ in Work 3. Whilst Amelia / Rose have both been lost at sea for 100 years, the story lines /plots for the ghost ship differ: In Work 2, Buster and Jack alert the Harbour Master about Amelia, Amelia is then boarded by the police; in Work 3, Rose leads Buster and Jack to a hidden treasure cave filled with precious stones and gold, and Buster and Jack lead Rose safely from the harbour.
Apart from the ghost ship, there are some generic, and mostly subsidiary, references in some individual episodes to various types of boats. No marine craft other than the ghost ship is a named character depicted in any of the Works. The only marine craft that are anthropomorphic are Buster, in one episode in Work 3 the ghost ship (but not Work 3). Generic references to types of boats are:
(a)in Work 1 – Russian, Chinese, American and Dutch sailing boats (episode 2), big boats (episode 3), sailing boats, missing yachts, two submarines in the harbour for maintenance (episode 20). In addition, in one illustration of Buster is a side profile of a large ship which Ms Duncan says is a car ferry;
(b)in Work 2 – Russian, Chinese, Norwegian boats (episode 1); car ferries (episodes 1, 12 and 13), yachts, police boat, row boat, rescue boat (episode 13); and
(c)in Work 3 – Chinese boat, car ferry, police boat.
Buster is the only anthropomorphic boat in the Works.
As I have said, the harbour and environs are a mainland, an island with a row of buildings – a small fishing village, a jetty, a few scattered smaller islands/ outcrops, and beyond them the open sea. Other features of the environment in individual episodes in the Works are:
(a)in Work 1 ‘the light house’ on a tiny lighthouse island (episode 3), and a hospital in the big city (episode 11);
(b)in Work 2, a lighthouse on a rocky outcrop, two red beacons, a village with small houses and shops (opening sequence), a bank on the Island (episode 3), city hospital (episode 5), and dock wall (episode 6); and
(c)in Work 3 a few small houses on the island.
In Work 2 the opening scene (storyboard, and animatic) depicts and describes an image of a white lighthouse with red roof and a few black horizontal bands, with its light sweeping around as dawn breaks across a vast ocean. Islands appear in shot, the village, jetty and houses, and Buster and then Jack are introduced. A copy of the storyboards for the Work 2 Opening sequence visual images and description / instructions is depicted within Annexure A attached to these reasons. In Work 3 the lighthouse appears in episode 6 titled ‘Buster & Jack’, as white with black horizontal bands. In both Work 2 and Work 3 two flashing beacons with red and white bands represent the boundaries of the harbour with the open sea.
Whilst the Works refer to a harbour, there is no description or depiction of it as being in a bay or cove, or bounded or surrounded by a landscape of hills, bays and coves – compare with, for example, how Sydney Harbour is surrounded, and which is entered from the open sea through the two Heads. In the world of each of the Works there are no entrance heads or headlands marking the boundary between the harbour and the open sea.
Consistently with the ‘moving story book’ animation concept, the story told in each episode of the Works is conveyed principally from the perspective of an anonymous third person narrator/ storyteller. Works 2 and 3 animatics / films are each narrated by an adult female voice, interspersed with some characters given direct speech (viz., the Harbour Master).
Further description of each of the Works is provided in [88]‑[90] below in these reasons, and in Annexure A (including the characters, Work 1 description and episode storylines, the Work 2 Opening sequence storyboard, and the Work 2 and Work 3 lists of episodes, animatics and films).
As I explain below, the copyright subject matter of Work 1 are literary and artistic works, of Work 2 are literary, artistic and dramatic works, and cinematograph films, and of Work 3 are cinematograph films, and include dramatic works, and artistic works, or reproductions of those works.
Bubble Bath Bay - the alleged infringement
Bubble Bath Bay is an animated television series for pre‑schoolers. For convenience, in these reasons I also refer to the series as ‘ABC series’. The production is a vibrant, warmly coloured CGI 3D animation. It comprises 52 x 11 minute episodes featuring an anthropomorphic young sailboat named ‘Sydney the Sailboat’ (aka ‘Sydney Sailboat’) and a fleet of friends and their adventures in a busy harbour setting. Sydney sailboat’s friends are a young water taxi ‘Zip’, a tugboat ‘Terry’, two little ferries ‘Bryan’ and ‘Toots’, an older crane barge ‘Muddles’, and a bird ‘Stormy’. Other friends making an occasional appearance include a seal ‘Slick’, a speedboat ‘Jet’, a sailboat ‘Cleo’, a mature submarine ‘Rodney’, and little canoes.
The harbour setting is brightly coloured (principally with a colour palette of warm hued primary and secondary colours), detailed and lively. It has houses and a town (and a neighbouring city in the distance), work yards, and a row of boathouses (in which Sydney and Zip sleep, and from which they bounce out into the day and on their adventures). It has verdant bays and coves, is surrounded by hills, has a red and white horizontally striped lighthouse ‘Aurora’ on an island, and two headlands at its entrance. Beyond the heads is the open sea. In broad conception the harbour setting is reminiscent of Sydney Harbour.
The characters’ appearances call to my mind children’s bathtub toys: they are modelled with simple bold shapes, in bright, mostly solid, primary and secondary colours and with decorative detail. They have highly animated, mobile facial features, with large, bulbous eyeballs, big mouths and expressive, floating eyebrows. The characters speak in dialogue with voices appropriate to their youth/maturity depending on the character. The series has a jaunty theme song. There is no narrator.
The only human in the series – adult or child – is a ‘harbour master’, who is referred to but never seen, and whose instructions Terry the Tugboat verbally relays in some episodes. A 2‑way radio is depicted on the instrument panel of Zip’s cabin console (and relied on by Ms Duncan). It does not make any sound.
The series has regular characters (Sydney, Zip, Terry, Stormy - appearing in every or nearly every episode), semi‑regular characters (Muddles, Bryan and Toots, appearing in some, but not every episode), and occasional, or one‑off characters (Cleo, Rodney, Slick, the little canoes - appearing in a few episodes, and ‘Humpy’, a whale calf, who appears in one episode). The regular characters, and the semi‑regular characters Muddles, Slick, Rodney, and the little canoes are all shown in the opening sequence for all episodes.
In sum, as characters, Sydney is a plucky young male single masted sailboat (who also has a spinnaker), Zip is a feisty young female motorised water taxi, with little black eyelashes (the male boats do not have any eyelashes), Terry is a sturdy, larger, tugboat and is depicted as a strong, male, mentor character, and Stormy, the petrel bird, is a flighty feathery‑winged female who brings with her an element of chaos / is a bit of a catastrophe.
In evidence is a detailed writer’s bible (draft from 2012, and finalised in 2013) made by the ABC and Essential Media team developing Bubble Bath Bay, which includes descriptions of the overall story, the characters and their personalities, the location Bubble Bath Bay, and animation parameters, with illustrations and instructions as to attributes and accessories. The writer’s bible – from draft to final form – documents the development of the world and characters in the series. I return to the writer’ bible later in these reasons in the context of the evidence of the development of Bubble Bath Bay. For present purposes, the synopsis set out in the writer’s bible (2013 final document) sufficiently accurately describes the television series Bubble Bath Bay, and the characters and their ‘world’ depicted in the television show as broadcast (as I found confirmed on my viewing of the episodes):
Bubble Bath Bay is an idyllic little bay where adventure and excitement are just a gust of wind away!
Fast-paced and full of fun and adventure, this animated series for preschoolers features best friends Sydney the Sailboat and Zip the trainee Water Taxi as they learn how to ride the waves of life alongside the other vessels of bustling Bubble Bath Bay.
Sydney is a plucky young sailboat who dreams of one day heading out and exploring the mysterious Big Blue Sea beyond the Harbour. But first he has to learn the ropes! And when you’re an accident-prone little yacht who often launches before he looks, that’s not as easy-breezy as it sounds.
Clever and resourceful, Sydney loves running errands for his hero Terry the Tugboat, the salty old leader of the fleet, using his agility, speed and well-stocked tool box to do all manner of odd-jobs to help keep Bubble Bay Bath ship-shape!
Under Terry’s safe and steady command, each episode sees Sydney and Zip embarking on a new and exciting adventure, and in the process learning important lessons about teamwork, friendship, cooperation, respect and problem solving.
Whether it’s solving a mystery with Zip, racing Bryan and Toots the chatterbox Ferries, competing with Jet the Cheeky Speedboat or exploring new places to play with Stormy the bird-brained Petrel – Sydney and his friends will always do their best to help Terry make sure it’s all smooth sailing in Bubble Bath Bay!
The following captured stills of Sydney, Zip, Terry, Muddles, and Stormy, graphically describe them:
(Zip (left) and Sydney (right))
(Sydney)
(Zip)
(Terry)
(Muddles)
(Stormy)
Supplementary written detail and some further stills relating to Bubble Bath Bay and its characters and location, and the 52 episode titles are set out in Annexure B to these reasons.
THE PROCEEDING AND THE HEARING
Ms Duncan commenced the proceeding by originating Application and statement of Claim filed 21 September 2020. The ABC relies on its defence dated and filed 19 November 2020. Ms Duncan filed a reply dated 29 November 2020.
The Claim contains various grounds of complaint, expressed with varying degrees of clarity and coherence.
During the course of the proceeding, Ms Duncan filed some 17 affidavits, together with attachments, and annexures totalling several hundreds of pages, and video files of the Work 2 DVD (6 mp4 files), and Work 3 (6 mp4 files, 4 of which she tendered in evidence). Among other documents, further to my direction, Ms Duncan filed a ‘Further and Better Particulars – Narrative’ entitled ‘Similarities: Copyright Infringement’ dated 4 November 2020 (comprising 53 pages and a cover page), admitted into evidence at the hearing.
Further to orders made by me on 3 December 2020, the hearing was confined to issues relating to liability, to be heard and determined separately from, and prior, to any issues of quantum. At hearing, as stated in her written opening submissions, Ms Duncan limited her claim to copyright infringement of the Works. These reasons are predicated on that limitation.
The hearing on liability took place over 6 days, comprising 5 days of openings and hearing of evidence, and a later day of oral closing submissions. I conducted the hearing over Microsoft Teams, sitting at the Court in Sydney, with the parties and all witnesses who were cross‑examined appearing remotely by Microsoft Teams. Ms Duncan appeared via MS Teams from the Court in Melbourne, and Ms Hickey, counsel for the ABC, also appeared via MS Teams from Melbourne together with her instructing solicitor.
Overview – the evidence and witnesses at hearing
At hearing, subject to my rulings, the parties read the evidence of 10 witnesses, Ms Duncan subpoenaed one witness, and the parties tendered various documents and videos. As I identify below, 8 witnesses were cross‑examined. During the hearing episodes and parts of episodes of the Works and Bubble Bath Bay were played to witnesses and the Court. The parties made written and oral opening and closing submissions.
Subsequently (and after multiple requests of the ABC) the parties provided competing final itemised schedules of their respective understandings of (i) the video material played to the Court and witnesses through the course of hearing (identifying by Ms Duncan, with the ‘timeline’/time elapsed by minutes and seconds of portions played, and responded to by the ABC by transcript references), and (ii) the affidavits, exhibits and documents marked for identification at the hearing.
Ms Duncan’s documents were also organised by lists of ‘Video opening and closing submissions – some examples of themes’ and lists of documents, the latter in turn grouping and repeating with variations identified exhibits and references within exhibits by subject matter such as ‘descriptions’, ‘script submissions’, ‘writers workshops notes/ email conversations’, ‘story location: Harbour entrance/the Heads’, ‘Bush Bath Bay – cast lists’, ‘cast members’ and their relationships such as ‘Main boat and best friend’, ‘Best friend’, ‘Bird character’, ‘Father figure/Harbour master/ radio’, ‘seal character’, ‘crane character’, ‘misc characters’, ‘Whale and baby whale characters’, ‘toolbox’ and ‘scenes’, various stories, and ‘40% producer off set’, documents. In response, the ABC succinctly identified the exhibits, and gave cross references to the exhibit’ descriptions and references in the Court book, and in transcripts.
The parties’ witnesses at hearing
Ms Duncan read and relied on 4 of her affidavits/ several of the attachments/annexures to them, and the Narrative. Ms Duncan was cross‑examined.
Ms Duncan also relied on an affidavit affirmed by Mr Martin Phillimore, located in Scotland. Mr Phillimore’s evidence supported Ms Duncan’s evidence of the source and dating of the inspiration for the character of Buster. He was not required for cross‑examination.
Mr Steve Trenbirth, who in about 2012, was appointed the director of Bubble Bath Bay, gave evidence in answer to a subpoena issued at Ms Duncan’s request, produced documents, and was examined by Ms Duncan, and cross‑examined by Ms Hickey. Mr Trenbirth gave evidence that he collaborated with the development team on Bubble Bath Bay, and attended meeting with the ABC about the series. Mr Trenbirth was the series director, and creative content around character was as important to him as whether something could work. He offered story and character ideas, animation, complexity and technical advice, and was also involved in the development of the characters Jet the speedboat, Coco (later Cleo) the sailboat, and the Canoes.
The ABC relied on the evidence of 8 witnesses, 6 of whom (together with Mr Trenbirth) gave evidence relating to the independent inspiration for, development timeline, and making of Bubble Bath Bay. These 6 witnesses were:
(a)Mr Gareth Eden-Styche, who, in 2002, newly arrived in Australia as a 27 year old graduate with a BA in business studies - marketing specialty, created the original concept of The Adventures of Bushbutter Bay, which he subsequently developed and pitched. As at the hearing, he was Managing Editor at the Sydney office of Saatchi & Saatchi, and the sole director of Shambles Communications Pty Ltd. (In the context of the evidence of the chronology of the development of the ABC series later in these reasons, I also refer to Mr Eden‑Styche’s creative concept for Bushbutter Bay and his development of it as the ‘Concept’);
(b)Mr Simon Hopkinson, the co‑creator of the original Bananas in Pyjamas children’s television show, and between late 2009 and July 2015, employed by the ABC as the ABC’s Development & Commissioning Editor, Children’s Television. Mr Hopkinson was first introduced to Mr Eden‑Styche and his concept for Bushbutter Bay in about 2008, gave feedback on the concept, and subsequently was instrumental in the development of Bubble Bath Bay. Mr Hopkinson’s career commenced in the early 1970s in theatre, and at the date of his affidavit, for the last 25 years had focused on children’s television. As at hearing, Mr Hopkinson was a freelance script producer and writer;
(c)Ms Carla de Jong, between July 2009 and August 2012 the ABC’s Head of Commissioning and Development, Children’s Content. In that role she was responsible for overseeing all production, development, and commissioning of original content for the ABC in a variety of genre for children of all ages. Ms de Jong joined the ABC in March 2008, and left in 2012 for a position with the Canadian Broadcasting Commission. As at hearing, Ms de Jong was the Head of Production at Sinking Ship Entertainment in Toronto, Canada;
(d)Ms Clare Madsen, a script writer on Bubble Bath Bay, who wrote 6 episodes for the series (episodes 1, 2, 3, 5, 15 and 36, three of which episodes she wrote in 2011 as pilot episodes). Ms Madsen was also instrumental in the character development for several characters. At the relevant time, Ms Madsen had more than 20 years’ experience as a script producer, writer, director and educator, with expertise in animation and children’s programs. As at hearing, Ms Madsen was a freelancer, and contractor with the Australian film production company Ned Lander Media;
(e)Ms Gina Roncoli, a screenwriter, story producer and script editor, who in 2010 briefly held a contract position at the ABC as a script assessor. From 2011, Ms Roncoli was involved in the development of Bubble Bath Bay as a script editor. As at the relevant time, Ms Roncoli had for many years specialised in animation and children’s series. As at hearing, Ms Roncoli was a lecturer at the Australian Film Television and Radio School; and
(f)Ms Carmel Travers, between January 2009 and September 2017 a co‑owner and a director of the production company, Essential Media, and its Executive Director of Business Development and Head of Children’s Entertainment. Ms Travers was the Executive Producer of Bubble Bath Bay (and who came up with the name). At the relevant time, Ms Travers had more than 40 years’ experience working in the television industry. As at the hearing, Ms Travers was the CEO of the production company Pop Family Entertainment Pty Ltd, which she established in 2017.
Ms Duncan cross‑examined each of the above named ABC witnesses. She did not challenge the veracity of their evidence in cross-examination nor put to any of them the allegation that they copied her work. I set out the evidence of these witnesses later in these reasons in the context of my consideration of the ABC’s defence of independent making of Bubble Bath Bay.
In addition, the ABC relied on the affidavit evidence of ABC employees Mr Aaron Mulheron, and Ms Kia Daley, ABC’s solicitor with carriage of the matter. They were not required for cross‑examination. Mr Mulheron is a long‑standing ABC employee, who at the relevant time in 2009-2011 was responsible for logging television proposals from members of the public, including Ms Duncan. I refer to his evidence below when documenting Ms Duncan’s and the ABC’s interactions. Ms Daley’s evidence was concerned with the management of the paperwork generated by Ms Duncan in the proceeding, which she attests, and I accept, has been considerable, and in large part extremely unwieldy, and repetitive.
In oral closing submissions counsel for the ABC asked the Court to take note of the positive way in which each of the ABC’s witnesses gave evidence, submitting that all those witnesses gave evidence of independent creation, that there was no defensive behaviour, and they readily made concessions where appropriate. Ms Duncan criticised the ABC for not calling Ms Wendy Hanna, Ms Travers assistant, who worked as part of the ABC and Essential Media development team for Bubble Bath Bay and is credited in the ABC series. The ABC’s witnesses’ evidence, which I accept, is that Ms Travers was present at all meetings in which Ms Hanna participated. No Jones v Dunkel issue arises. As I have recorded above, the ABC witnesses’ affidavit evidence was not impugned in cross‑examination.
No issue of credit arises in this case. I consider that all the witnesses called by each party made a genuine attempt to assist the Court by giving evidence honestly, and where cross-examined, that they frankly answered questions asked of them. I accept their accounts. I am satisfied the relevant people involved in the development of Bubble Bath Bay gave evidence.
RELEVANT FACTS AND EVENTS
Unless the context makes clear otherwise, my stating in these reasons without qualification a fact is a finding of the fact I state.
Work 1 - Ms Duncan’s creation of Work 1 and dealings with the ABC
Ms Duncan conceived of the idea for a children’s animated television show about a boat in 2008, while in Scotland. In Oban, catching up with Mr Phillimore, her attention was caught by a small wooden boat she espied working through a storm, working when all the other boats, except the large car ferry Cala Mac, had ceased working. She took photographs of the little boat, and later showed them to Mr Phillimore in Perthshire. Mr Phillimore gives confirmatory evidence.
Ms Duncan began working on the scripts for Work 1 after that trip to Scotland.
In around mid-2009, in advance of the launch of ABC3, the ABC’s then new digital‑only children’s channel, the ABC publicly campaigned for proposed content for children’s television shows. According to the press release posted on its website in early August 2009, the ABC invited all types of submissions for children’s television shows ‘depending on the genre of the program: two page concept document, short or long bible, demo, etc. We leave it up to you as to how best to sell your show.’ In response, the ABC received many hundreds of submissions across all genres of children’s television.
As I have adverted to above, Mr Mulheron was the ABC’s Commissioning and Development Coordinator in the ABC Children’s Television department from about July 2009 until approximately August 2013. He was listed in the ABC’s press release as the person (and position) to whom the submissions should be addressed. Mr Mulheron recalls receiving more than 450 submissions.
Ms Duncan submitted both Work 1 and another proposal she had written called ‘The Animator’s’ Club’ to the ABC in response to the above call for content by the ABC’s Children’s Television department. She submitted Work 1 to the ABC by registered post on about 28 August 2009. Ms Duncan had submitted The Animator’s Club to the ABC on 19 August 2009, also by registered post. The Animator’s Club was a proposal for a 26 x 25 minute documentary on the creative process of animation for a teenage (tween and teen) audience.
Both Ms Duncan’s proposals are logged in the ABC’s electronic records system ‘Dragon’ as being received by post on 17 August 2009. Mr Mulheron was responsible for logging the submissions received by the ABC into the Dragon system. He states that ‘given the volume of submissions received at that time, it is possible that the date [he] entered into Dragon is an error and the submission was actually received in late August or early September 2009’. Mr Mulheron posits that given how Dragon operates, it is more likely he logged the receipt of Work 1 around the time he sent his email acknowledging its receipt.
Mr Mulheron acknowledged receipt of Work 1 and The Animator’s Club by separate emails to Ms Duncan on about 11 September 2009. In his email Mr Mulheron advised that the proposals would be passed to the development manager and that the recipient should hear from the ABC in about 6 weeks. Commencing on about 30 October 2009, Ms Duncan regularly followed up with the ABC (Mr Mulheron) by phone and by email about the status of the review process. Between 12 September 2009 and 15 February 2010 Ms Duncan and Mr Mulheron exchanged at least 7 emails about the progress of her submissions.[1]
[1]Slight date/time differences – a matter of 17‑19 hours – in some emails and chains of email correspondence between Ms Duncan and Mr Mulheron (the ABC) appear to be a product of the time zone/location attributes or technical settings of the parties’ respective electronic mail systems, and otherwise are of no consequence.
The description of Buster given in Work 1 on the first page of the visual component (where it appears immediately underneath Buster’s name and illustration of Buster facing forward/front‑on) was entered into Dragon as the description of the Work, as follows:
Buster is a young wooden boat, who lives in a fishing harbour. He has a very important job, taking people to the small island in the middle of the harbour and back to the coastal town again. Buster has many friends who live in the harbour, who he sees almost everyday while doing his job.
On 2 February 2010, Ms Duncan emailed the ABC informing it that she withdrew Work 1 and The Animator’s Club, as she had decided to take her scripts elsewhere, having not heard from the ABC. She asked that Work 1 and The Animator’s Club be returned. On 15 February 2010, by email Mr Mulheron advised Ms Duncan that he had withdrawn her projects/works from the ABC system and that her material would be returned by post. The fact that Work 1 was withdrawn by Ms Duncan is also recorded in Dragon.
Ms Duncan says that the submissions were never returned. Mr Mulheron does not recall returning the proposals. They have not been located by the ABC. The ABC contends that the ABC’s usual practice was for submissions to be destroyed once they were reviewed. The ABC, however, has no record of any review and assessment of Work 1 in Dragon.
As I have noted above, Ms Roncoli was contracted to the ABC at this time to help in reviewing the submissions the ABC had received for children’s television programs. Ms Roncoli reviewed The Animator’s Club on about 8 March 2010, and her assessment was logged in Dragon. Ms Roncoli’s assessment of The Animator’s Club proposal was recorded as ‘An educational series exploring all aspects of animation’, assessed it as having some merit, but as more appropriately directed towards a producer with [an educational and technical] sort of background and focus, and recommended the ABC pass on it. Ms Roncoli has no record of having seen or reviewed any submission with the name ‘Buster the Brave Little Wooden Boat’.
On 13 October 2010, following an email approach by Ms Duncan, by email Mr Mulheron provided Ms Duncan with some general information about how to make a submission, and a link to the ABC’s generic pitch page on its website for children’s television, which stated to the effect: ‘If you’re an individual please visit the Screen Australia ‘Starting in the Industry; website to help locate a production company’.
Copyright notice on Work 1
As shown in the pictures at [16] above, on Work 1 Ms Duncan states her claim to copyright in the Work by setting out the copyright symbol © and the year ‘2009’ and her contact details on the cover page of each of the visual content and the text content of the Work.
Work 2 - Ms Duncan’s dealings with Screen Australia
Work 2 was developed by Ms Duncan when she did not hear back from the ABC about Work 1, I infer commencing in late 2009. Ms Duncan worked on Work 2 together with a team of animators and illustrators she trained with at Box Hill TAFE. I identify them below when considering Ms Duncan’s claim to title.
On 13 January 2011, Ms Duncan submitted Work 2 by hand to Screen Australia’s Development Department through the Short Animation Production Initiative. The submission was for a grant of money to make ‘Buster the Brave Little Wooden Boat’. It was unsuccessful. Sometime later, Ms Duncan was notified by email from Screen Australia accordingly. Ms Duncan contacted Screen Australia following receipt of its notification seeking reasons for its decision.
By letter dated 31 March 2011, Screen Australia set out its reasons and informed Ms Duncan of their assessors’ comments as follows:
… The assessors made the following comments about BUSTER THE BRAVE LITTLE WOODEN BOAT. We hope you find them useful:
BUSTER THE BRAVE LITTLE WOODEN BOAT is the story of a tugboat that sets forth to rescue a stricken yacht. Anthropomorphic treatment of vehicles is a much‑explored premise in pre‑school content and books, from THOMAS THE TANK ENGINE to CARS. The challenge for the applicant is to bring something different and original to a crowded field where the audience is used to high quality entertainment, with fully developed worlds, large casts of characters, and emotive narratives. Further work is required on the script itself to deliver more sophisticated character and narrative. The simple 2D style has a charm but the requested budget of $150K could support a more ambitious and professional and distinctive look and feel. The principle applicant would have benefited from more examples of previous work in order to demonstrate talent against the fierce competition. The potential for a meaningful professional development experience for Annie is undermined by her taking on all three key creative roles of producer, writer and director, with no significant experience in the mix to learn from. Short animation aimed at pre‑schoolers struggles to find the target audience, and also struggles to have the kind of festival life that would enhance a career, so the short format must be questioned as the appropriate medium to deliver this story. Ultimately the main value of the short might be as part of a pitch proposal for a TV series, and that is taking a more narrow view of the use of these funds than other applications in this round.
In this very competitive program, the assessors felt that there were other applications that presented a more compelling case for funding.
I hope that you find this feedback useful and constructive in the development of your project.
Ms Duncan subsequently made several FOI requests of Screen Australia and the ABC. Under cross‑examination Ms Duncan’s evidence was that no response to any of the FOI requests she made produced any material to prove that Screen Australia passed on Work 2 to the ABC.
There is no evidence that Work 2 was provided to or obtained by the ABC, Essential Media, or any of the ABC’s witnesses or their businesses. Ms Duncan relies solely on inferences she submits are to be drawn from alleged similarities between Work 2 and Bubble Bath Bay.
Copyright claims and notices on Work 2
On the cover page of the storyboard component of Work 2, Ms Duncan states her claim to copyright in the Work by the statement ‘© Copyright Annie Duncan 2010’. In addition, the statement and equivalent appear – ‘© Copyright Annie Duncan 2011’ – on each of the front cover slick of the DVD, and on the back cover slick.
The credit details on the back cover slick of the DVD of Work 2 state:
created by the talented team of:
Annie Duncan (writer)
Rob Shilo, Adam Pearce, Steve Evans, Khyan Adair, Glen Wotherspoon (animators)
Liam McRae and Hiroko Nakamura (Composers).
Further communications between Ms Duncan and the ABC in the period 2011 and 2012
In mid‑2011, Ms Duncan contacted Mr Mulheron for information for submitting program ideas for commissioning consideration. In response, on 22 August 2011, Mr Mulheron emailed Ms Duncan and informed her that, before the ABC could assess her project, she would need to have attached to it an experienced Australian production company. On 23 August 2011 in reply to Mr Mulheron’s email, Ms Duncan informed Mr Mulheron that she had a meeting coming up with an experienced producer and would inform him if the producer decides to go ahead.
In August 2012, Ms Duncan emailed the ABC again, incorporating in an email to Mr Chris Rose at the ABC a two‑page screenshot which I refer to as the pitch: see below at [84]-[85].
For the purposes of preparing his affidavit evidence in this proceeding Mr Mulheron undertook a review of the ABC’s Dragon’s records. He states that from his review of Dragon it does not appear that the ABC commissioning team received a further submission in respect of Ms Duncan’s animated series of Buster. Ms Duncan does not say that she sent any other submission about Buster the Brave Little Wooden Boat, whether in the form of Work 1, or the pitch, or otherwise, to the ABC.
Work 3 - Community Television communication of Work 3
The evidence of the claims as to title and televising of Work 3 is scant. The episodes of Work 3 were televised on Community Television from about October 2014, commencing on its Channel 44 in Sydney, and thereafter televised in Adelaide, Melbourne, and Brisbane. The Work 3 episodes were developed from Work 2 storyboards and mp4 animatics on the DVD.
In Work 3 principal characters look different from their previous depictions. As I expand upon below in the context of my consideration of Ms Duncan’s claims to title and claims of infringement, the principal characters were drawn and animated by different illustrators, and some aspects of storylines were changed, from Work 1 and from Work 2. The episodes of Work 3 were more sophisticated than the Work 2 animatics (DVD), but Work 3 was not fully animated, or moving. Ms Duncan referred to Work 3 as a 2D ‘moving storybook style’.
Work 3 title and credit details
The following opening and end credit details are shown in each of the episodes in Work 3 (the 4 episodes in evidence):
Directed by Annie Duncan
Assistant Director Rob Shilo
Edited by Lucian Scaglio
Animated by Adam Pearce, Hung Li, Rob Shilo, Glenn Wotherspoon
Background Artist Lisa Coutts
Illustrated by Annie Duncan, Adam Pearce, Ben Wood, Mark Sheard, Rob Shilo, Steve Evans
Voice‑over by Jan Bayly
Sound Recording by Dale Warren
Sound Design by Keith Thomas
Music Composed by Hiroko Nakamura
Technical Advisors Anne McDermott, Eddy Crosby, Rob Shilo
Text Edit by Cathy Larsen, Catherine McCredie, Steph O’Connell
Book available at website © Annie Duncan 2014
Story Time Productions
Ms Duncan could not say whether Work 3 was seen by anyone at the ABC or Essential Media. Ms Duncan relies solely on inferences she submits are to be drawn from alleged similarities between Work 3 and Bubble Bath Bay.
The ABC witnesses did not see the works
Each of the ABC’s witnesses as well as Mr Trenbirth, subpoenaed by Ms Duncan gave evidence that none of them had seen any of Work 1, Work 2 or Work 3 prior to preparing to give evidence in the proceeding. As I have recorded above, I accept their evidence in all material respects. In particular I accept each of the witnesses’ statements that they had not seen Ms Duncan’s Works. As I return to below, I reject Ms Duncan’s submission to the effect that there was any copying, conscious, or unconscious, of any substantial part of any of the Works.
Other works not alleged infringed
At points in the hearing before me, Ms Duncan also referred to a book and an email pitch (the latter, was also referred to in submissions by the ABC). During the hearing, Ms Duncan confirmed that she limited her claim to infringement of the Works, and she did not press any claim of copyright infringement of any other subject matter. In addition, Ms Duncan acknowledged that she never disclosed any book to the ABC.
Whilst to complete the chronology of the parties’ interactions I describe the email pitch below I reiterate, no claim of infringement of the pitch is pressed by Ms Duncan, and I do not consider it further.
The pitch
In August 2012, Ms Duncan emailed an ABC employee, Mr Chris Rose, incorporating in her email screenshots of a two page pitch for an animated 10 x 5 min 2D series/ 10 books titled ‘Buster and Jack’. In the email Ms Duncan states that the pitch ‘has been written for simple translation into other languages, as well as into ten picture books. I have a team in Melbourne to animate, as well as a couple of musical composers’.
The pitch comprises 4 pictures – two of Buster, one of Jack, and the Harbour Master /radio - and accompanying text describing the proposed series, the characters (Buster, Jack, the Harbour Master here as a walrus, usually depicted as a radio transmitting, and the Mother Whale and calf, Max), and five sample plot lines, each of between one and 3 lines.
Mr Rose replied to Ms Duncan’s email, copying Mr Hopkinson into his email. The ABC advised Ms Duncan “we have a show about to go into production ‘Bubble Bath Bay’ whose lead characters are all boats. Given that we are only able to commission a handful of pre‑school properties, I regret that Buster and Jack is not something that we can consider given our commitment to Bubble Bath Bay.”
The Works – expanded description
Work 1 - ‘Buster, the Brave Little Wooden Boat’
As I have referred to above, Work 1 is a written and illustrated proposal for a ‘26 X 5 minute episodes 2D Animation’ television series for an audience of 3 to 6 year olds. In total (including 2 cover pages) it comprises 15 pages of visual images and text. There are 6 pages primarily with visual content, and 6 pages of text, together with a cover page for each of the visual and text components. The title and description of the proposal appear on each cover page, together with a notification of Ms Duncan’s claim to copyright – a copyright symbol and the year ‘2009’, and contact details for Ms Duncan.
The visual component comprises a cover page with the above title and an illustration of Buster, and is followed by illustrations with a flat, 2D drawn and hand‑painted appearance, and short text descriptions of 6 principal characters, some in or on the water. The text component follows. Behind the text cover page, the text comprises a 1 page overview of the two main characters and their personalities, 4 other characters and the different worlds they interact with, followed by 6 pages summarising the 26 episodes, each in a short paragraph of between 3 and 12 lines. Although Buster and Jack appear in each episode, each episode is a self‑contained story.
The characters illustrated and described are Buster, his best friend Jack the seagull, a retired engineer with one leg, who is very good at baking cakes, and repairing things; Peter the hermit crab, a builder; Little Bob, the artist cat; and two young seals, Meg and her younger brother Oliver. Other anthropomorphic beings appearing over the course of 26 episodes are Betty the dolphin, a mother Killer Whale, and her calf, Max, and a mean alley cat. People are referred to in more than two thirds of the episodes, but except for the ‘Harbour Master’, as generic types such as a mother, boy, girl, a swimmer, fishermen, firemen, artists. The Harbour Master appears in more than one episode. He is referred to as a male and is the only human given a proper name / title.
Work 2 - ‘Buster, the Brave Little Wooden Boat’
The print component comprises storyboards of 2D visual images and accompanying text for an opening sequence and 13 episodes, including accompanying notes for scene development and camera instructions shot by shot, narration, and some dialogue (well‑spaced over 103 pages). Following the storyboards for the episodes are 3 pages of written description and accompanying drawings (of the Characters) arranged under headings and subheadings: Buster, The Brave Little Wooden Boat, The Animation, Style, Whats it about, The Environment, The Characters, and Style and Design. As I have said, a copy of the opening sequence storyboard is reproduced within Annexure A.
As Ms Duncan describes in the overview in the print component of the submission, the characters depicted in Work 2 are the main two characters Buster and Jack, Peter the Hermit Crab and Lil the artist cat have a minor role to make up the community, in addition, the Mother killer whale is a large and protective presence, the harbour master ‘represents humans as a race to co‑exist with, who is seen only from behind as a figure by a second story window looking out over the harbour’, speaking over the radio, ‘with a rich and warm voice and not domineering’, and two twin seals, described as ‘happy go lucky types’.
Work 2 also comprises DVD (with cover slick) containing 6 mp4 files – the animatics - described as draft episodes and scenes for ‘Buster, The Brave, Little Wooden Boat’. On the DVD cover slick these video files are listed and also described as:
Writer’s rough storyboard (Before final development, backgrounds, animatic and animation).
Work 3 - ‘Buster and Jack series’
Work 3 is the 2D children’s animated television series. It represents the realisation of some of Work 1 and Work 2. Four episodes of the television series are in evidence, ‘Buster & Jack Series – Episode 1 The Harbour’, ‘Buster & Jack Series – Episode 3 The Ghost Ship’, ‘Buster & Jack Series – Episode 4 – Not Feeling Very Well’, and ‘Buster & Jack Series – Episode 6 Buster & Jack’. The opening scene for the Work 3 episodes is new, and differs to the Work 2 opening sequence storyboard and animatic. A still of the title image of Work 3 reproduced above at [16] gives some indication of this.
The remaining two episodes televised by Community Television were not relied on by Ms Duncan at hearing, and were not tendered in evidence. Ms Duncan’s evidence is that the episodes are titled ‘Buster & Jack Series – Episode 2 The Birthday Party (A New Friend)’, and ‘Buster & Jack Series – Episode 5 Captain Kate & Grandma Madge’. As they do not form part of the evidence I do not include them in my consideration.
Ms Duncan describes the animation style and design of Work 3 as a moving story board. It is apparent on viewing and hearing the 4 episodes of Work 3 that the characters, environs, the episodes, and the animation style bear a substantially closer resemblance to what is depicted and described in Work 2, than in Work 1.
The episode titles for Work 2 and Work 3 are set out in Annexure A with some further detail. Given my findings I do not propose to provide the same level of detail for these Works as for Work 1.
INDEPENDENT DEVELOPMENT OF BUBBLE BATH BAY (ABC AND ESSENTIAL MEDIA)
As I have recorded above, the ABC submits that Bubble Bath Bay (that is, the ABC series) was an independently created animated television series made without copying and without reference to Ms Duncan’s work.
The ABC relies on the evidence of Mr Eden‑Styche as the creator of the original concept The Adventures of Bushbutter Bay (as I discuss below, the Concept), and the evidence of 5 of the ABC’s witnesses and Mr Trenbirth who with Mr Eden‑Styche were the team that developed and made Bubble Bath Bay, inspired by Mr Eden‑Styche’s Concept.
Mr Eden‑Styche moved to Australia from the United Kingdom in about 2002 when he was about 27‑years‑old. He lived with a young family in the Eastern suburbs of Sydney, who had two small children aged two and four‑years‑old, and he helped care for the children. He formed the view that there was a lack of Australian themed children’s television shows particularly between bath time and bedtime. Shortly after moving to Sydney, he started working in hospitality at the Cruising Yacht Club of Australia (CYC) in Rushcutters Bay.
In late 2002, during a shift working in the members bar at the CYC, and looking out over the marina, Mr Eden‑Styche came up with a subject for a kids bath time to bedtime television show – a show set in a bay like Rushcutters Bay based around the boats and other vessels and children at a children’s sailing school. He started scribbling ideas for characters and storylines, and came up with the title The Adventures of Bushbutter Bay based loosely on Rushcutters Bay (that is, the Concept). The characters he came up with in the Concept were anthropomorphic boats and sea planes, children, and adult people. Mr Eden‑Styche drew sketches of some principal characters, and on 26 April 2003, he emailed to himself five sketches he had drawn of a sailboat he named ‘Bushbutter Bill’, a motor-powered boat ‘Muggles’ (later called ‘Muddles’), a sailboat ‘Sassy Alice’, and seaplane ‘Seshan’, and the Concept logo. The drawings are in evidence. I consider that in essential respects the drawing of Bushbutter Bill clearly resembles Sydney sailboat in Bubble Bath Bay. I note that at some early point in time when Mr Eden‑Styche’s was working on the Concept, Bushbutter Bill had a sailor, Sidney.
Mr Eden‑Styche worked on the Concept over the next few years. Between 2002 and 2006, he approached television production companies, book publishers and toy manufacturers to try to garner their interest in the Concept. In around 2006 he incorporated Shambles Communications as a marketing and production vehicle for the Concept. In around July 2006 he obtained the help of Ms Alex Hutchings, a freelance graphic designer, to finesse his drawings of the Concept. Ms Hutchings did so, and drew revised illustrations of Bushbutter Bill, Sassy Alice, Seshan, Muddles (who had previously been named ‘Muggles’), and for additional characters ‘Freddy’ the ferry and ‘Colin’ the crane.
In the later part of 2007, Mr Eden‑Styche engaged a marketing agency Channelzero to create a ‘teaser’ animation for the Concept accompanied by a short poem he wrote, narrated by a friend. Mr Eden‑Styche’s evidence is that it depicts an aerial perspective, flying over Bushbutter Bay, seeing the boat characters. The teaser was described as aiming to give a sense of the Concept and demonstrate its capability to be realised. A screen grab of the DVD cover for the animation is in evidence. It features the logo. At ground level, it depicts a jetty, and surrounding water and three boats a single masted yacht from a side perspective, and two boats looking forward, both with cabins and anthropomorphic faces - the sailing boat character Bushbutter Bill with his single mast and sail, and Muddles, with wide mouths on their hulls, bulbous eyeballs and surprised eyebrows, and clown ball noses. The screen grab is annexed to these reasons at Annexure C. The two boats’ features bear a similar resemblance to the Bubble Bath Bay characters’ features.
In around July 2007, Mr Eden‑Styche partnered with talent management company IMG. An entry in the ABC’s Dragon system records that on 19 October 2007, the ABC received a proposal from IMG (Mr Nicholas Goldsworthy) for ‘The Adventures of Bushbutter Bay’ (that is, the Concept), and that it was rejected. In December 2007, the ABC’s Head of Children’s Television, Mr Tim Brooke‑Hunt wrote to IMG and advised that the ABC had rejected the Concept. Mr Eden‑Styche’s evidence was that “I felt that [the Concept] was not yet at a stage where it was ready to be presented”.
The introductory document
In evidence is the ‘introductory document for the Australian Broadcasting Commission’ written by Mr Eden‑Styche as at 31 October 2007. Mr Eden‑Styche attests he created the introductory document for the October 2007 submission by IMG to the ABC set out above at [103].
The cover page of the introductory document has an image of the series logo, the same as appears in the screen grab of the animation, the tagline ‘it’s all about friendships…’, text stating ‘26 (52) x 12-minute episodes’, and the statement ‘CONFIDENTIAL Shambles Communications Pty Ltd & Gareth Eden‑Styche’. On the next (second) page copyright statement, under which is the text ‘NB: all illustrations, stories and concepts contained here are first draft only. Further development is required’. A copy of the series logo is annexed to these reasons at Annexure D, It depicts the main characters, with their anthropomorphic features, fanning out around Bushbutter Bill framed by a lifebelt/ life buoy. Visually, the logo and the ABC series’ logo share similar concepts of the main character looking out through the ring of a lifebelt / life buoy.
The introductory document details the premise for the Concept with the description ‘in a city in a land not far away, there’s a place by the sea called Bushbutter Bay. And as the sun wakes up on another perfect day we wonder, what will happen next in Bushbutter Bay?’. The Concept is described as a ‘fictional harbour in a fictional city free from the influences of the outside’, with boats adults and children that ‘form a fine balance that allows for unique story development, imaginative scenario formation and intelligent, imaginative play’.
On pages 4 to 9 of the introductory document the main characters are pictured and described including principal character Bushbutter Bill the sailboat (a copy of the illustration of Bushbutter Bill is attached as Annexure E), his ‘love interest’ sailboat Sassy Alice, Muddles an engine-powered boat and supporting characters including seaplane Seshan, Freddy the Ferry, an unnamed ‘old’ crane, Susan the Sailboat and Derrick the Destroyer.
Next, a cast of five human characters is detailed including Bushbutter Bill’s sailor Sidney, all of whom ‘all spend time outside wearing sunhats’. Settings including the Heads where ‘the Bay meets the ocean with two lighthouse prs forming a well-lit entrance’; the ‘Big Town’ and ‘Big City’ are also described. The introductory document also includes a summary for episode 1 – ‘BushButter Bill’s Big Surprise’, and refers to a draft TV script for episode 2, but no script for episode 2 is in evidence.
In October 2008, through a mutual acquaintance Mr Eden‑Styche first met Mr Hopkinson, who was a freelance script writer at the time. Mr Eden‑Styche pitched the Concept to Mr Hopkinson. Mr Hopkinson gave Mr Eden‑Styche feedback about the Concept. Mr Hopkinson said he believed the Concept had merit, but it needed some work. Mr Hopkinson put Mr Eden‑Styche in touch with a contact at a film production company, and later learned that Mr Eden‑Styche had turned down a development deal with it.
Independently, Mr Eden‑Styche also met with Essential Media and subsequently presented the Concept to Essential Media’s Mr Ian Collie and Mr Chris Hilton. With them, Mr Eden‑Styche attended a ‘speed pitching’ conference organised by Screen Producer’s Association Australia in around November 2008, and pitched the Concept to ABC’s Ms de Jong at the conference. From this time Mr Eden‑Styche and Essential Media worked together to get the Concept made into a television program.
An entry in Dragon records that on 2 March 2009 the ABC received a submission from Mr Hilton (Essential Media) for the Concept. The Dragon entry records the Concept under the title ‘Bushbutter Bay’, with the same description and in the introductory document above at [106].
Around 5 March 2009, Mr Hilton (Essential Media) and Ms de Jong (ABC) met to discuss Essential Media’s then current ‘kids’ slate’ - the suite of television programs it was working on to create. One of the shows in Essential Media’s kids’ slate was the Concept. Following their meeting, on 9 March 2009 Mr Hilton emailed Ms de Jong pitching the Concept - giving details of an animation entitled ‘The Adventures of Bushbutter Bay’. Ms de Jong obtained an ABC internal Reader’s Report assessment of the Concept at this time. The resultant Reader’s Report, in the ‘Recommendation’ section records the question: “Do we want to make a copy of Thomas – but on the water?”. The reference to ‘Thomas’ was to the children’s television series ‘Thomas the Tank Engine’. On 21 July 2009 Ms de Jong informed Mr Hilton that although “it was a great concept” the ABC had decided to pass on The Adventures of Bushbutter Bay.
Ms Travers commenced at Essential Media in 2009. She reviewed The Adventures of Bushbutter Bay. She states that on her review she formed the view that while The Adventures of Bushbutter Bay was a promising product, it required significant development.
Mr Eden‑Styche undertook further development of the Concept, and in 2009-2010 (the evidence does not establish any more precise date) he presented a revised version of the introductory document to Ms Travers (Essential Media). On 30 July 2010 Mr Eden‑Styche and Essential Media entered into a formal agreement relating to the Concept.
At around this time Ms Travers changed the name of the Concept to ‘Bubble Bath Bay’ to better resonate with the intended pre‑school audience for the television series. I refer to the Concept after this time as Bubble Bath Bay.
In February 2011, Ms Travers met with Mr Brooke-Hunt (as I have said above, the Head of ABC Children’s Television) and Mr Hopkinson (who had joined the ABC in mid‑2009) to discuss Bubble Bath Bay. Ms Travers presented the ABC with a significantly reworked proposal. The reworked proposal piqued Mr Brooke-Hunt’s interest in the ABC developing the television series. The co‑development and co‑production by the ABC and Essential Media of Bubble Bath Bay dates from this time. The ABC agreed to co-finance the project.
Implementing the ABC’s decision to take on the project in association with Essential Media, Mr Hopkinson then took on the role of managing its further development. Mr Hopkinson provided feedback at each stage of the development of Bubble Bath Bay. He was responsible for approving most aspects of the development of Bubble Bath Bay, including scripts, music, graphics, story outlines, storyboards and animatics.
Three scripts for episodes of Bubble Bath Bay were commissioned from the writer Mr John Patterson. On receipt and review of Mr Patterson’s scripts Mr Hopkinson considered that the scripts needed re‑working. He did not like them. Mr Hopkinson’s evidence is that he thought the scripts risked being “too boy‑centric”. In evidence, Ms Travers recalled that Mr Patterson’s writing was a bit old‑fashioned and sexist. She said they [the ABC and Essential Media personnel] didn’t really like his writing and it had the wrong vibe. Mr Hopkinson and Mr Brooke‑Hunt met and decided that the ABC should contribute some funding to develop the writing for the show. Mr Hopkinson proposed to Essential Media that high‑quality female contributors be brought on board the team, and suggested Ms Roncoli as script editor, and Ms Madsen as a writer.
In March 2011, Ms Travers asked Ms Roncoli to work on Bubble Bath Bay, and she agreed. On 31 March 2011 Mr Hopkinson emailed Ms Roncoli Mr Patterson’s scripts to build from and to work with Ms Madsen as the new writer. Ms Travers approached Ms Madsen and asked her to assist in the development of three pilot episodes for a new series - Bubble Bath Bay - which Ms Madsen recalls Ms Travers described to her as “Thomas the Tank Engine on water”.
On 1 April 2011, ABC and Essential Media entered into a stage one (of three) Development Agreement.
On 4 April 2011, Ms Roncoli sent Mr Patterson’s scripts to Ms Madsen to inform her what Mr Hopkinson did not want Bubble Bath Bay to look like, accompanied by preliminary thoughts Ms Roncoli had for improvements to be made to the concept.
Two writers’ development workshops for Bubble Bath Bay were held in Sydney, on 8 April 2011 and on 18 April 2011. Ms Roncoli and Mr Hopkinson organised them. They were attended by Mr Hopkinson, Ms Madsen, Ms Roncoli, Ms Travers and Ms Hanna. In evidence are emails from Ms Travers and Ms Hanna circulated to attendees following the workshops, attaching notes taken by Ms Hanna during the sessions as well as reference images she sourced, variously of boats, birds, and lighthouses. The purpose of the workshops was to brainstorm ideas for, and to work on developing the characters and stories for Bubble Bath Bay. Ms Madsen recalls that one of the development sessions was held on a yacht. She understood that the aim was for “us to get a sense of life on the harbour, so we could incorporate all the necessary elements into the animation”. Ms Travers recalled, “we just wanted to capture the sounds of Rushcutters Bay, the clinking of the cleats at the top of the masts and the sounds of the birds and the atmosphere…”.
The notes from the 8 April 2011 workshop include details for characters including Sydney, Zip, Terry, Gru the crane (later renamed Muddles), two ferries Freddy and Biff (Biff later became Toots), and Aurora the lighthouse.
The 8 April 2011 notes also show that the character Stormy was conceived as possibly a male. They note that Stormy would be a ‘harbour bird’ possibly a stormy petrel and that Stormy would be the ‘uh oh character – older, wiser, a commentator and warning system for the Bay’. Ms Madsen gives evidence that she created Stormy, and said she “thought it would be fun to add a character who is a bit catastrophic. I intended for her to be a metaphorical barometer or ‘mood ring’ for the show. Mr Trenbirth, who was appointed Bubble Bath Bay director in 2012, recalls that Stormy came about due to consultation between himself, Ms Travers and Ms Roncoli. Mr Trenbirth deposed that the decision to use a petrel was because the colour of the petrel stood out against the background of the sky. From his view as director, he said the main reason for including a bird in Bubble Bath Bay was that it offered the animators a different point of view for the camera.
Ms Madsen recalled that they were brainstorming the jobs they could have within the limitation of boats – “And problem-solving is a big part of your storylining for pre-school”. As to the relationship between Sydney and Zip – “Usually when you’re developing a pre-school series, you develop a community of friends and associates and so on”. Ms Madsen recalled that it would be fun to have a strong contrast (sailing boat versus water taxi) and “we wanted them … to have jobs, because that’s a great story engine”.
Following the workshops, in 2011 Ms Madsen wrote scripts for three episodes as pilots: the episode 1 – Running on Empty, episode 2 – Royal Visit and episode 3 – Cleo at Cove.
As I have said, in October 2012 Mr Trenbirth was appointed the Bubble Bath Bay director. His role was to assess the work completed on the project, offer ideas in relation to storylines, characters Jet, Coco/Cleo, the canoes, animation, complexity, technicality. While Mr Trenbirth was not part of the writing team, he was involved in some writing or story meetings.
As I recorded at [34], in November 2012 the workshop team wrote a draft ‘Writer’s Bible draft in progress’, which was to be circulated to writers on the series. The writer’s bible was finalised by 18 February 2013. See further, below.
On 13 February 2013 a development session for the ABC series took place, attended by Mr Rose, ABC Commissioner for Kids TV at that time, Ms Travers, Mr Trenbirth, Ms Madsen, Ms Roncoli, Mr Eden‑Styche, and Ms Hanna, and also Mr Rodney Whitham, production supervisor, and two other writers - Ms Kym Goldsworthy, and Mr David Witt. A photo of the participants at the session is in evidence.
Shortly following that meeting, on 18 February 2013 the Bubble Bath Bay ‘Writer’s Bible’ was completed (2013 final document). Both the 2012 draft and the 2013 final document set out the ‘logline’ for Bubble Bath Bay as an ‘animated pre-school series about the adventures of Sydney the Sailboat and his fleet of friends who live in Bubble Bath Bay’.
In the 2012 draft the synopsis sets out the theme, including the nature of Sydney’s relationships with Terry and Zip, which was expanded on in the 2013 final document. Also in the 2012 draft, the regular characters are each named and described in some detail, including Sydney, Zip, Terry, Stormy, along with semi-regular characters, ferries Bryan and Freddy (later Toots), and Muddles the barge. These were expanded on in the 2013 final document.
Other ideas detailed in the 2012 draft writer’s bible and expanded upon in the 2013 final document include the nature of the stories encompassing a ‘promising optimistic tone’, a vibrant, active feel, while focussing on curiosity, adventure and play, ‘celebrating the joys of life’, with each character having an important role to play; regular jargon to be used including ‘ahoy’, ‘aye aye’ and ‘ship shape’; and animation parameters for features such as ropes and sails.
In the 2012 draft the setting includes locations such as the Heads and Aurora the lighthouse, the look and feel being CGI 3D, and art direction of a ‘vibrant colour palette’ with ‘painterly style and texture’, were all carried over into the 2013 final document.
Mr Hopkinson’s evidence is that by July 2013 a licence agreement for Bubble Bath Bay had been entered into which provided for the following timeline:
·pre-pre-production: 17 December 2012 – 12 July 2013
·pre-production: 15 July 2013 – 22 August 2014
·production: 17 February 2014 – 28 November 2014
·post-production: 2 June 2014 – 6 March 2015
Ms Roncoli’s evidence is that in September 2013, script and animation parameters were revised, which included various guidelines for creators regarding script length, format, referencing, themes, character traits and designs.
Ms Madsen gives evidence that between 2012 and 2014 she wrote a further three scripts which became episode 5 – Zip in a Spin, episode 15 – Buoy oh Buoy! and episode 36 – Sailing School Rules.
As provided for in the timeline in the licence agreement referred to by Mr Hopkinson, in 2015 Bubble Bath Bay was broadcast on ABC Kids. Mr Eden‑Styche was credited as the creator of the series. At some point after the initial broadcast the name of the ABC series was changed to Sydney Sailboat. Ms Travers’ evidence is that the name was changed in response to feedback that she understood came from people at the American children’s channel Sprout, who suggested that the name Bubble Bath Bay was skewed to too young a demographic.
Conclusion on the independent development of Bubble Bath Bay
The ABC’s witnesses’ evidence of the development of Bubble Bath Bay and its evolution from Mr Eden‑Styche’s concept is supported and substantiated by the contemporary record tendered in evidence, some of which documents I have referred to in the above chronology. The contemporaneous documents included documents produced by Mr Trenbirth in answer to Ms Duncan’s subpoena. In addition to the documents I have referred to, the documentary evidence I have considered included notes and emails about the writers workshops in 2011 and further to them exchanging and developing the concepts recorded as discussed in the workshops, and 3 pitch documents prepared and distributed by Essential Media (Ms Travers, and under her direction, Ms Hanna) in 2011, 2012 and 2013 respectively to seek funding from third parties. Each of those documents is supportive of the witnesses’ evidence of the independent development of the ABC series.
As I have recorded earlier in these reasons I accept the witnesses’ evidence, and I have recorded that Ms Duncan did not challenge their veracity. Mr Trenbirth – called by Ms Duncan on subpoena - agreed with the position taken by the ABC witnesses. He was firm that, to his knowledge, Bubble Bath Bay involved original ideas and concepts not copied from anyone else. Mr Hopkinson was asked in cross‑examination whether submissions entered into Dragon were used as part of their development, he responded “Certainly not. No. No, no, no, no, no. I, mean, that would be anathema.” I was impressed by the witnesses’ honesty and demeanour.
It follows from the above, on the evidence I find that Bubble Bath Bay (the ABC series) is an independently created television series made without access to or any reference to, and without copying any of the Works.
It is apparent from the above chronology and from my review of the evidence of the Concept and the ABC series that the ABC and Essential Media team for Bubble Bath Bay did not adopt Mr Eden‑Styche’s scripts or the Concept in detail. I am satisfied however and I find, and it is apparent from the introductory document, that his Concept – with the harbour setting, the anthropomorphic boat characters, the crane and other vessels, and their characterisation and personalities, and with its tagline it’s all about friendships - was the inspiration for the ABC series, Bubble Bath Bay.
RELEVANT LEGAL PRINCIPLES
The legal principles of copyright relevant to the subject matter and claims of this proceeding are well settled. Some of those principles were identified by counsel for the ABC in her written submissions and I have been assisted by those submissions in the following summary.
Copyright is a set of exclusive rights created by the Copyright Act 1968 (Cth) in relation to different types of subject matter - literary, dramatic, musical or artistic works - and certain subject matter other than works, relevantly cinematograph films. I caution that in this discussion of relevant principles, as does the Act, I use the term ‘work’ as a convenient expression to refer generally to each of literary, dramatic, musical and artistic works (where it is not necessary to distinguish among those copyright subject matter). The term should not be confused with the 3 particular subject matter in which Ms Duncan claims copyright, namely the Works.
It suffices to discuss the relevant legal principles primarily by reference to a work and a cinematograph film. Section 32 of the Act provides that copyright subsists in an original literary, dramatic, musical or artistic work of which, relevantly, the author was a qualified person when the work was made, or if the making of the work continued over a period, where the author was a qualified person for a substantial part of that period. Section 90(1) of the Act provides that copyright subsists in a cinematograph film of which the maker was a qualified person for the whole or a substantial part of the period during which the film was made.
Section 31 of the Act provides that copyright in relation to an original literary, dramatic, musical or artistic work consists of or includes (depending on the nature of the work) the exclusive right to reproduce the work in a material form (the reproduction right), to publish the work, and to communicate the work to the public.
Section 86 of the Act provides that copyright in relation to a cinematograph film is the exclusive right to make a copy of the film, to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public, and to communicate the film to the public. ‘Copy’ in relation to films has a specific defined meaning in s 10 as ‘any article or thing in which the visual images or sounds comprising the film are embodied’.
A literary, dramatic or musical work is deemed to have been reproduced in a material form if a sound recording or cinematograph film is made of the work: see s 21(1) of the Act. Conversely, relevantly, non‑exhaustively, a cinematograph film may also include, or be a reproduction of, or the exercise of the communication or performance right of, one or more works. I observe also that in s 10 of the Act a ‘dramatic work’ is defined as including a scenario or script for a cinematograph film, but does not include a cinematograph film as distinct from the scenario or script.
The ABC seeks to be heard on costs. Accordingly, I will stand over the proceeding to a date to be advised after consultation with the parties, to hear the parties on the issue of costs.
I certify that the preceding two hundred and seventy-nine (279) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 6 November 2023
ANNEXURE A
ANNEXURE A – PART 1
Detailed description of content of Work 1
The works – detailed description of the works
Work 1 - the visual content
The first illustration is of the central protagonist Buster, with the following description:
Buster is a young wooden boat, who lives in a fishing harbour. He has a very important job, taking people to the small island in the middle of the harbour and back to the coastal town again. Buster has many friends who live in the harbour, who he sees almost everyday while doing his job.
Buster is depicted as a small wooden boat, front on, and in side profile. His head is the cabin, and his body the hull. His head (cabin) is as tall as his hull, and nearly half the length of his body (hull). He has a big, rounded cream coloured face, with a flat, brick coloured roof. He has large oval shaped eyes which look forward to the stern, with large black irises, black lines as eyebrows, lightly drawn window wipers for eyelashes, and a smile line. His hull is two‑coloured, the upper part a light red/brown colour, and closer to the water line, a mid‑brown colour, separated by a white, wavy plimsoll line, with a grey gunwale and second grey rib running horizontally around the upper part of his body, and a single grey rib along the length of the bottom of his keel. He has a flat green deck. He has a cheery, surprised look.
His friends Peter the Hermit Crab, and Little Bob (the artist cat), are next depicted and described. The following illustration depicts Buster, all eyes, and very small, in the water in front of a looming side profile of a large ship. The next illustration is of Jack, the one legged seagull fishing with Buster. Jack is standing on Buster’s deck with two fishing rods angled off Buster’s deck as if his arms.
Jack is naturalistically drawn and coloured, in greys and white brushstrokes. The text describes Jack as:
Buster’s best friend is a seagull named Jack, who only has one leg. Jack is a retired engineer who used to work on the oil rigs way out to sea. Jack is very good at baking cakes. He makes cakes daily to share with his friends. He is also good at repairing thing[s] and help[ed] Buster with his engine problem when it blew too much smoke. Everyone in the har[b]our thinks Buster and Jack are the best friends ever.
The next visual image is Jack wearing a yellow raincoat, rainhat and wet weather boot, standing one-legged on a jetty in the rain waiting for Buster. Jack (head quarter profile, yellow beak, beady eye, and chest, a glimpse of leg, and tail feather) is depicted as before in grey and white brush and pen strokes, whilst his clothing, the jetty, water and rain drops/sleet 2are drawn simply, with flat outlines, and flat colour in a 2D ‘cartoon style’ by which I mean in a simple outline line drawing and block coloured style common to 2D illustrations in picture books for young children.
The last illustration is of two young seals, Meg and Oliver, faces and heads above water looking straight at the viewer, all depicted in flat 2D cartoon style.
Work 1 – the text content
The one page overview is as follows (without alteration):
BUSTER, THE BRAVE LITTLE WOODEN BOAT is an Animation series about friendships. Buster and Jack represent a possible close friendship within two very different characters.
Buster is a young small wooden boat. He is youthful, but old enough to know right from wrong. He prides himself in his job and never sees his small size next to the large ferries as a sign of inferiority.
Jack represents the old wise mature character that give a moral code to everyone’s behaviour. He is a retired engineer who used to work on the oil rigs way out to sea. Everyone has respect for Jack as the perfect gentleman whose practical wise words are always sound advice. He never mentions how he lost his leg and no one evers (sic) refers to it.
The two main characters interact with different worlds with ease. The sea life is dispicted (sic) with dignity for all. Killer Whales, Seals, dolphins and a crab are all friends of Buster and Jack.
The Seal brother and sister are just fun. Meg, the oldest can do strange tricks with her eyes. While her younger brother has difficulty keeping up with her and often falls over, thus he is covered with band aids. Oliver also has a constant running nose which is daily feature of his face.
The Killer Whale Mother figure is a large presence who is very protective over her own calf as well as Buster. She is the mother figure in the story.
Peter the hermit crab represents the practical hands on builder type. Betty the dolphin has a real zest for life when she plays basketball with the team.
This world also interacts with the domestic world of cats. Little Bob is very philosophical and his job as an artist makes him a reflective character.
Humans are also referred to as a race to co exist with on fair grounds. The Harbour Master has authority but comes across as respectfull (sic) to the surrounding animal kingdoms. He is never seen, but is portray (sic) as a crackling voice over the radio. The Harbour Master’s voice must be one of compassion and not at all domineering.
The Animation is about values of friendship with humans and animals alike.
The harbour is the world, the Animation is staged in. The sea outside the harbour is portrayed as unknown territory to only venture in when accompaied (sic) by a knowledgeable figure such as the Hiller Whale Mother.
Work 1 then sets out the story for each of 26 episodes. Each story is simply stated in 3 to 12 lines of text. There are no titles. Over 26 episodes, Buster ferries people between the Island and the Mainland, and he and Jack and friends have various adventures and experiences. Jack features with Buster in 20 of the episodes, which in 10 episodes end with cake – usually baked by Jack, as a treat, or in one instance given by a mother as a reward for Buster’s help with her boy.
About two thirds of the episodes involve Buster – often assisted by his friends helping humans. The people and events/ storylines told in these episodes comprise, briefly:
(a)People loaded on board Buster with their luggage and groceries, and with Jack, and Little Bob, going to the Island, meeting Peter the hermit crab (Episode 1);
(b)Summer visitors with people and sailing boats from all over the world (Episode 2);
(c)people marooned in a storm on another island with a lighthouse (Episode 3);
(d)a swimmer in trouble in the middle of the harbour (Episode 4);
(e)a bushfire on the Island from which Buster ferries people, and picks up firemen to put out the fire (Episode 7);
(f)visitors travelling to and from the Island with luggage at holiday time (Episode 8);
(g)bank robbers on the Island (Episode 10)
(h)taking sick children around the Harbour and out to the Island (Episode 11)
(i)ferrying the local girls basketball team to play with the Island team (and a ball overboard providing fun for the dolphin and seals and a workout for the girls) (Episode 12);
(j)two missing yachts, out to sea beyond the Island, Buster, with the help of the mother Killer Whale finds them and brings them back to safety (Episode 13);
(k)making friends with a bad‑tempered fisherman (Episode 14)
(l)an Easter egg hunt for the children on the Island (Episode 16);
(m)an army general inspecting two submarines in Harbour for maintenance (Episode 20);
(n)a small boy gets off Buster and back onto the jetty, an impatient business man yells at Buster, who waits until the mother finds the boy (Episode 21);
(o)a young family go to the Island to hunt for seashells, Buster asks Peter to help (Episode 23);
(p)one of the fishermen’s girlfriend asks Buster to be part of the bridal party, and Buster is painted, polished, and be-ribboned, and ferries the bridal party to the Island, and is even in the local paper (Episode 24); and
(q)Buster chases a bad tempered shark away from swimmers, with the killer whale mother and calf, the seals, betty and the bad tempered fisherman all helping, Jack flies over head (Episode 25).
In the final episode, Buster ferries a local choir to the Island to sing Christmas carols on the jetty, ferries them back to the mainland, and then Buster joins all his friends who live in the Harbour for a Christmas feast, baked by Jack (Episode 26).
Other episodes (without identifiable humans) comprise:
(a)Buster with a smoking engine – noticed by Bob the artist cat, and fixed by Peter the hermit crab and his tool kit, with Jack’s help (Episode 6);
(b)Buster and Jack visiting the mother Killer Whale to see her new calf, Max (Episode 5);
(c)Buster and Jack looking for the killer whale calf, Max, who is found by Betty the dolphin, playing with the seals (Episode 9);
(d)Little Bob and his Artists Society friends having a painting day on the Island (Episode 15);
(e)a mean, thieving alley cat who is warned by Buster and Jack, and then helped (Episode 17);
(f)Buster and Jack having a picnic (Episode 18);
(g)the seals having a fight, and making up (Episode 19); and
(h)Betty the dolphin finding a wounded albatross with a broken wing and with Buster and Jack taking it to the Vets to be put in plaster (Episode 22).
ANNEXURE A – PART 2
Work 2 – Episode Titles
Work 2 – Storyboard episodes:
Opening Sequence (following page sets out the full storyboard)
Episode one - The Harbour
Episode two - New Baby
Episode three - Robbers
Episode four - New Friends
Episode five - Hospital Kids
Episode six - Bad Alley Cat
Episode seven - Run Away
Episode eight - Bushfire
Episode nine - Dog Lost
Episode ten - Not Feeling Well
Episode eleven - Lets Paint
Episode twelve - Ghost Ship
Episode thirteen - BusterWork 2 – 6 animatics
Episodes 11, 12, and 13 of the storyboard are also reproduced as animatics with variations on titles. There titles are ‘High Art’, ‘Ghost Ship’, and ‘Lost At Sea’, respectively.
In addition, 3 other animatics are : ‘Buster & Jack – Pitch’, ‘Buster – Boats at Night Scene’, and ‘Buster – Storm Scene’.
Storyboard for the opening sequence of Work 2 – ‘Buster, the Brave Little Wooden Boat’ – on the following pages:
ANNEXURE A – PART 3
Work 3 – Episode Titles
Work 3 episode titles in evidence are:
(1) ‘Buster & Jack Series – Episode 1 The Harbour’
(3) ‘Buster & Jack Series – Episode 3 The Ghost Ship’
(4) ‘Buster & Jack Series – Episode 4 – Not Feeling Very Well’
(6) ‘Buster & Jack Series – Episode 6 Buster & Jack’.
Episode titles of episodes screened by Community Television not in evidence and not part of Work 3:
(2) ‘Buster & Jack Series – Episode 2 The Birthday Party (A New Friend)’
(5) ‘Buster & Jack Series – Episode 5 Captain Kate & Grandma Madge’.
ANNEXURE B
Further description of Bubble Bath Bay characters, location and environment, and 52 episode titles:
Bubble Bath Bay characters
The characters’ traits and attributes have been described in the Bubble Bath Bay Writer’s Bible dated 18 February 2013. The characters are described below as they are described in the Writer's Bible and how they appear broadcast.
As to the characters’ physical traits, the appearances of some of the principal characters differ in some minor respects as between the Writer’s Bible and the series as broadcast. The appearances of the characters as broadcast are described below and graphically shown in [35].
Sydney the Sailboat
Sydney is always at the centre of action and sees the world from the child audience’s perspective. A plucky young adventurer with a lively imagination and cheeky confidence, Sydney is eager to explore the world, is full of daring and ambitious dreams, and bursting with ideas. His catchphrase is “spinnaker, fly!”.
Sydney appears with a tri-coloured hull in horizontal stripes of red and white separated by a thin blue line. Sydney’s helm is cream-coloured and has a subtle glow. From the helm stands one red and blue sail at the front and one white sail at the back attached to a yellow mast, with a small red and blue flag attached at the top. His bulging eyes appear on the helm of the boat. His eyes have black pupils, blue iris, which is surrounded by white sclera. His eyelids encompass the outside of the eye above which his eyebrows float. Sydney also has a round porthole window on the side of his helm.
Zip the trainee motor-powered water taxi
Zip is enthusiastic, fast and a bubbly ball of energy. Zip still has a lot of growing up to do, and is the Bay’s resident prankster. A bit of a tomboy, Zip doesn’t mind getting dirty, is lively, inquisitive, eager to learn new skills and always keen to play. Her catchphrase is “hoop-dee-doo!”.
Zip is clearly recognisable as a taxi with yellow paint work on the top two-thirds of her hull, helm, and awning with black checkerboard paintwork around the top one-third of her hull. She has bulging eyes adorned with eyelashes, green iris and floating eyebrows. The bottom-third of her hull is a bright red colour. The red and yellow coloured parts of the hull are divided by a white coloured stripe, which is almost at the water level – also where Zip’s smiling mouth is positioned. Around the top of the hull is a bright-white lip. Zip has three‑rows of seats for passengers and is open-air. Atop the awning Zip has a ‘taxi’ light and a small yellow and black checkerboard flag.
Terry the tugboat
A middle-aged male, Terry is the strong and dependable mentor to Sydney and Zip and overall ‘leader’ of the fleet. An old-fashioned stickler for the rules, he is knowledgeable, but a bit rusty when it comes to technology, and his top priority is to make sure everything is ‘ship shape’. His catchphrase is “anchors aweigh”.
Terry is predominantly blue in colour, however, the top half of his hull has a yellow stripe atop a white stripe which is just above the waterline. His helm is a box-like cabin. His roof on top of the helm is yellow to match the stripe around his hull and he has a forward-facing spotlight. He is accessorised with three orange tyre rings strung on his hull as well as an orange buffer on the lip of his bow. His eyes have black pupils, blue iris, which is surrounded by white sclera, and his yellow eyelids encompass the outside of the eyes.
Stormy the storm petrel (small ocean bird)
A child-like adult female, Stormy is a kind-hearted, emotional, clumsy, ditzy and nosy character, who brings chaos to the show.
Stormy is pictured with a predominantly chestnut-coloured feathers with white underside feathers, and faint stipe across the wing and in the tail-feathers. Stormy stands on bright tangerine-coloured legs and webbed feet. Stormy’s beak is a soft mustard-colour – yellow. Stormy has round bulging eyeballs with white sclera, mustard-coloured iris, black pupils and thin brown line eyebrows above.
Semi-regulars
Bryan and Toots
Male (Bryan) and female (Toots) passenger ferries who are super competitive, busy‑bodies who always know the ‘word on the water’.
Bryan is pictured with green on the bottom of his hull and white at the top of his hull, separated by a yellow stripe, which is also where his mouth is positioned. He has bulging eyes featuring green iris and floating eyebrows. The driver’s cabin sits atop the passenger’s cabin, which features four windows, a red and white buoy on the side and a small green and yellow triangle flag on top. One green and one yellow speaker face the front on top of the driver’s cabin.
Toots is pictured with red on the bottom of her hull and white at the top of his hull, separated by a yellow stripe, which is also where her mouth is positioned. She has bulging eyes featuring lush eyelashes and floating eyebrows. The driver’s cabin sits atop the passenger’s cabin, which features four windows, a red and white buoy on the side and a small red and yellow triangle flag on top. One yellow speaker is visible, facing the front on top of the driver’s cabin.
Muddles – male large barge with on-board crane
Muddles is a worrywart who suffers from seasickness and has a fear of heights. He is also the strongest, sturdiest, most reliable vessel on the Harbour. He is also the strongest, sturdiest and most reliable vessel on the Harbour. He’s always convinced he’s got some rare and exotic illness.
Being a barge Muddles is always pushed around and feels hard done by. Muddles would rather be napping peacefully, moored safely to a jetty, than be shoved around and do the heavy lifting. Muddles is equipped with a crane on his bow that can lift heavy loads on and off deck. Muddles isn’t lazy, he just hates being interrupted.
Friends of Bubble Bath Bay (episodic characters who visit from time to time)
Jet the speedboat
A sleek boastful, reckless and competitive 6-year-old with a big ego who aspires to be a champion raceboat. He thinks he's the coolest boat around and is always trying to coax Sydney into a race or other misadventure so he can show off his exceptional racing skills. He’s a bit fond of Zip too, and shows it by constantly taunting and splashing her.
Jet visits Bubble Bath Bay to play because he’s actually lonely, which he keeps a big secret. In Bubble Bath Bay, he can be a big boat in a small bay, whereas back home, he's the smallest boat in a very, very big harbour. In a crisis, Jet’s true colours shine through as his brashness turns into bravery; he’s always ready to speed right in to help when it’s needed most.
Cleo the sailboat
Sailboat Cleo is younger than Sydney and Zip but that doesn't stop her desperately wanting to do everything that her slightly older playmates do. While she’s joyous and innocent, she's a long way from learning the ropes and thinks the Harbour revolves around her. Her short attention span means she never fully listens to instructions and is always getting herself into deep water, which can be infuriating for Sydney and Zip. But cute little Cleo always means well is quick to giggle, and always remorseful, so they can't stay cross with her for long.
The Canoes
While the Bay’s little canoes can't speak, they can squeak volumes. Frolicking about like little ducklings, the canoes need constant watching over or else they’ll wander off without warning. The Canoes adore games and live in the boathouses at Bubble Bath Bay.
Bonita the fishing trawler
Bonita is a female, robust medium-sized fishing trawler who is loud, flamboyant, full of life, laughs and fish. Bonita is always a welcome visitor to Bubble Bath Bay on her way to and from Big Port where she unloads her ocean haul. With the gift of the gab, she loves to share tall tales of her exciting exploits on the high seas - flying fish, coral reefs, mermaids, pirates- Bonita has seen it all! Sydney and Zip are enthralled by this glamorous boat from beyond the Heads, and always look forward to her noisy visits.
Queen Josephine the ocean liner
A grand old dame of epic proportions, Queen Josephine is the biggest ocean liner in the world. A very occasional visitor to Big Town, Queen Josephine requires all of Terry's towing power to maneuver her through the Harbour and under Admiral Bridge. She has a majestic, deafening horn that only Terry can interpret.
Humpy the whale
A young humpback whale, Humpy sometimes visits the Bay when he and his mother come through the Harbour for a rest on their way to or from the polar ice caps. Despite being just six-years-old, Humpy is huge. He's often accidentally bumping into things and putting Sydney and Zip a little off balance with all the waves he makes. But he's gentle and placid and just wants to be one of the fleet. The only member of the Bay who can really understand what Humpy is saying is Stormy, who's always more than happy to provide her own convoluted translation of his 'speech'.
Slick the seal
Sleek, quick and the ultimate nosey trickster, Slick is a golden brown Australian fur seal who loves nothing more than playing games. When he wants attention, he claps his flippers and ‘arfs’ his arrival to make sure everyone knows he’s around. He’s very good at juggling things on the end of his nose and loves showing off for Sydney and Zip who delight in his presence. But he’s also very stealthy and can move through the water as quick as a flash and without a sound. Being a trickster, things often go missing when Slick’s around, which can get Terry’s ropes all in a twist. But Slick always returns anything he’s ‘borrowed’ to its rightful place.
Rodney the submarine
A dapper submarine, Rodney is a former officer and a gentleman. With a monocle and a moustache, Rodney is occasionally seen in the Bay whenever he’s visiting the Harbour on his travels. An old exploration sub, Rodney nevertheless maintains a youthful exuberance for life on the high seas. While he may have been superseded by younger models Rodney is always up for an adventure.
Lulu the seaplane
Wide-eyed, positive and enthusiastic, Lulu the Seaplane is boisterous, bubbly and always thrilled to whoosh about wherever she’s needed. The glass is always full for this sprightly seaplane. It doesn't matter what the seas offer up, Lulu will always find a cheerful, positive spin on the situation. Her sweet and innocent demeanor makes up for what she lacks in logic.
Bubble Bath Bay location and environment
Bubble Bath Bay
Bubble Bath Bay is the pristine little bay where Sydney and his friends live. Within the Bay there is the Dockyards (where the boats are cleaned and cargo is loaded and unloaded), the Marina (where boats are moored) and the Boathouses (where Sydney and Zip sleep).
As the land and buildings on each side of the Bay are relatively low, from within Bubble Bath Bay you can see west across the harbour to Admiral Bridge in the distance, north-west across to Point Periwinkle and Four Winds Beach, north-east to Hidden Cove with Aurora Island to the right, and east out to the Heads and the big blue sea beyond.
Hidden Cove
Across the harbour from Bubble Bath Bay is Hidden Cove ‑ a little cove brimming with possibilities for adventure and play. It’s like Sydney’s and Zip’s private cubby house. Home to a shipwreck and a maze of creeks and waterfalls, it’s a favourite place to play games. From the harbour, you can’t see past the protruding rock formations into Hidden Cove, and when you are in Hidden Cove itself, you can't see past the rocks out into the harbour. To enter, you must paddle through the Shallows - a small entrance with shallow waters so only small vessels are able to enter.
Aurora Island
A small island that features Aurora lighthouse, a majestic red and white lighthouse that casts a protective eye over Bubble Bath Bay and guides all the marine craft safely. Aurora’s beacon comes on at night and can be seen clearly from Bubble Bath Bay. Stormy loves to start and end each day perched on Aurora, having quirky one‑sided chats as she surveys the blue horizon.
Big Town Harbour
Beyond Admiral Bridge lies Big Town - a jumble of bright lights and buildings. There are two ports in Big Town Harbour; Big Port and North Port. Big Port hosts large ships such as Queen Josephine that come to visit the harbour. At North Port, there’s a fish co-op where Bonita delivers her catch.
Ferry route
Bryan and Toots each morning embark on their ferry route around the entire harbour area. There are 9 main stops: Bubble Bath Bay Jetty, Marina Wharf, Little Wharf, Big Port, North Port, Dingle Island, Mulligan's Jetty, Point Periwinkle Jetty and Aurora Island.
The Heads and beyond
The Heads is the high, narrow entrance to the harbour, beyond which lies a vast and mysterious ocean - the big blue sea. Because they are only junior vessels, Sydney and Zip aren't allowed past the Heads. But they are always excited whenever a new ship or visitor comes through.
Banjo Bay houses, Point Periwinkle Jetty and the Oyster Farm
Cleo lives at Point Periwinkle Jetty directly opposite the Oyster Farm, which is of great interest to Zip (she finds these small creatures fascinating). The old and rustic Oyster Farm contrasts with the more affluent lifestyle of the Point Periwinkle area. Zip is often called on to ferry passengers and cargo to and from Point Periwinkle and other townships around the Bay and Middle Harbour.
Bubble Bath Bay (later Sydney Sailboat) episode titles:
1 Running on Empty 27 Making Muddles Merry 2 Royal Visit 28 I Forget 3 Cleo at The Cove 29 When Zip Became Zap 4 Muddled Friends 30 Hot, Hot, Hot 5 Zip in a Spin 31 Popstar Samira 6 Ferry Bad Luck 32 Team Spirit 7 Dragon Parade 33 Cleo’s Big Find 8 Muddles in the Mist 34 Under the Weather 9 Around The World in A Day 35 Regatta at the Bay 10 Stormy Weather 36 Sailing School Rules 11 Bonita’s Party 37 Major Hiccup 12 Gone With The Wind 38 Ruffled Feathers 13 Cheeky Canoes 39 Treasure Chest 14 Crash Landing 40 Oh Barnacles! 15 Buoy Oh Buoy! 41 Perfect Stormy 16 Seal of Approval 42 Speedy Boats 17 Hear Hear 43 Coral Caves Camp Out 18 Sleepy Sydney 44 Sydney’s Boat Day 19 Sydney’s Royal Parade 45 Iceberg Escape 20 Tall Stories 45 Jet Ski Jumble 21 A Very Ducky Day 46 Spring Fever 22 Lost & Found 48 Sub v Seaplane 23 New Tricks 49 Treasure Hunt 24 Trash and Treasure 50 Stormy At Sea 25 How Terry Got His Groove Back 51 Shape Up 26 Worry Muddles 52 Sydney’s Slip‑Up Opening sequence of Bubble Bath Bay (later titled Sydney Sailboat)
Sequential still images capturing the opening sequence of Bubble Bath Bay, which is the same for each of the 52 episodes in evidence and introduces characters:
(lighthouse is ‘Aurora’)
(Zip and Sydney, and their boathouses)
(Slick – the seal – and the canoes)
(Zip and Sydney)
(Stormy)
(Terry)
(Muddles)
(Regular, semi‑regular and some occasional characters)
ANNEXURE C
The Adventures of Bushbutter Bay - screengrab
ANNEXURE D
The Adventures of Bushbutter Bay series logo:
ANNEXURE E
The Adventures of Bushbutter Bay – principal character, Bushbutter Bill
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