Intellectual Property Update - Brennan v Foster Blake [2021] Fed C Fam C2G 261

Intellectual Property
Tom Cordiner Headshot
M Marcus
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Intellectual property – copyright – infringement – separate questions

The applicant (Ms Brennan) alleges that the respondent (Ms Foster Blake) infringed Ms Brennan’s copyright by copying parts of Ms Brennan’s manuscript for her novel “Playlist” (“Brennan Manuscript”), and incorporating the parts taken into Ms Foster Blake’s novel “The Wrong Girl” (“Foster Published Work”).

Plainly enough, for Ms Brennan’s claim to succeed, she must establish that Ms Foster Blake had access (directly or indirectly) to the Brennan Manuscript – otherwise there could have been no “copying”.

This interlocutory decision concerned a separate determination of a factual question, namely whether or not Ms Foster Blake had access to the Brennan Manuscript prior to Ms Foster Blake’s delivery to her agent and publisher of the first draft of Ms Foster Blake’s manuscript for her novel (“Foster Manuscript”), which novel – the Foster Published Work – was subsequently published on 26 February 2014 by Penguin Random House Australia New Zealand Pty Ltd.

On about 2 February 2012, Ms Brennan commenced writing the manuscript for her novel, and continued manuscript development through July to December 2012. On 14 February 2013, she submitted an application to Writers Victoria to participate in their 2013 mentorship for emerging writers, and requested Ms Bethany Blanchard as a mentor. On 2 April 2013, in response to Writers Victoria requirements, Ms Brennan emailed to Writers Victoria a cover letter, one page synopsis, and a sample of her writing of approximately 6,000 words (namely, the Brennan Manuscript).

On 8 April 2013, Writers Victoria arranged an initial meeting between Ms Brennan and Ms Blanchard and subsequently confirmed to Ms Brennan that they had emailed the Brennan Manuscript to Ms Blanchard on 15 April 2013. On 15 April 2013, Ms Brennan and Ms Blanchard met in person.

Ms Brennan alleged that Ms Blanchard knew Ms Foster Blake and that from about 14 or 15 April 2013, through the agency of Ms Blanchard, Ms Foster Blake had access to the Brennan Manuscript.

Ms Foster Blake rejected that claim arguing that the content in the Foster Published Work which Ms Brennan alleged infringed her copyright was already present in substantially identical or similar form in the Foster Manuscript (which she said was an earlier draft of the Foster Published Work) at a time before Ms Blanchard received the Brennan Manuscript. Ms Foster Blake claimed that she had written the Foster Manuscript by 2 April 2013, and that on 2 April 2013 she emailed it to her then editor (“Sent Email”), Ms Kirsten Abbott, at Penguin Random House, and by copy email to her literary agent Ms Wynne (“Received Email”). It followed, Ms Foster Blake submitted, that the Foster Manuscript was disclosed to a third party before Ms Brennan met Ms Blanchard and so Ms Foster Blake could not have copied the Brennan Manuscript.

A central question in the case was going to be whether there had been use of the copyright work, which would involve access to the copyright work. The case focused on factual matters, including matters of chronology, whether the Sent Email and Received Email and attached Word document were sent and received as contended, the data integrity of the digital forensic evidence propounded as evidencing the communications and attachment, and Ms Foster Blake’s claim that the Foster Published Work was made without use of the Brennan Manuscript. Forensic experts were called and were cross-examined.

The Court considered three questions for determination, namely:

Question 1: Whether on 2 April 2013 the Respondent sent the first draft of the Foster Manuscript by email to her then editor and to her literary agent.

Question 2: Whether the Respondent had proved that, as at 2 April 2013, the Foster Manuscript contained the passages of text which the Applicant alleges is copied from her novel “Playlist”, or text closely resembling those passages of text.

Question 3: Whether the Respondent could have had access to chapter 1 of “Playlist” from Ms Blanchard in drafting the manuscript before 2 April 2013, given the Applicant’s allegation that Ms Blanchard received chapter 1 of “Playlist” on 14 April 2013.

Having accepted the expert evidence, the Court was satisfied that the Foster Manuscript was attached to the Sent Email and to the Received Email and that it was the same document and it had not been swapped, manipulated or back dated. Therefore question 1 was answered in the affirmative. In relation to question 2, the Court was satisfied that Ms Foster Blake had proved that, as at 2 April 2013, the Foster Manuscript contained the passages of text that Ms Brennan alleged were copied from her novel “Playlist”, or text closely resembling those passages of text, save for 13 extracts. In relation to question 3, the Court found that Ms Foster Blake could not have had access to chapter 1 of “Playlist” from Ms Blanchard in drafting the Manuscript before 2 April 2013.

The matter has since settled, on the basis that proceedings were dismissed and Ms Brennan acknowledged in a note to the consent orders dismissing the proceeding that the copyright claim was without merit and Ms Foster Blake did not copy her manuscript or infringe her copyright works.

Tom Cordiner Headshot

Tom Cordiner QC holds the dual qualification of barrister and registered patents and trade mark attorney

M Marcus

Melissa Marcus practises in defamation law and all aspects of intellectual property

Marcus Fleming Headshot 1

Marcus Fleming practises in commercial litigation, with a particular focus on intellectual property law

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