Audiovisual infringement: the accessibility of an original work through the lens of accidental encounter
Paris, Division 5, Chamber 2, February 20th, 2026, No. 24/04655
On February 20, 2026, the Paris Court of Appeal was asked to rule on an allegation of audiovisual infringement concerning the episode “Rachel, Jack and Ashley Too” from the series Black Mirror. This episode was accused of reproducing the plot, characters, and certain dramatic elements of the French film L’Unique (1986).
In the audiovisual sector, infringement is typically established by demonstrating the reproduction of original elements from a pre-existing work, which inherently involves unauthorized borrowing. Nevertheless, to proceed, it is essential to establish that the author of the second work was aware of the existence of the first work.
In accordance with the established legal precedent, case law has long acknowledged that the similarities between two works may arise from a accidental encounter or reminiscences stemming from a common source of inspiration. This principle was further reinforced by the Court of Cassation in its May 16th, 2006, ruling (Cass. 1st Civ., May 16th, 2006, No. 05-11.780). In other words, while reproduction generally constitutes infringement, this may be ruled out if the defendant can prove that the similarities arose from independent inspiration.
This particular judgment aligns seamlessly with the prevailing jurisprudence in this area. In this particular case, the court observes that the onus of proof falls upon the party invoking the doctrine of accidental encounter (see, for instance, Cass. 1st Civ., October 2nd, 2013, No. 12-25.941; and Cass. 1st Civ., October 5th, 2022, No. 20-23.629). It is therefore incumbent on the alleged infringer to demonstrate that they were unable to access the original work. The aim of this requirement is to prevent the undue reversal of the burden of proof. To claim independent inspiration, the author of the second work must prove that it was impossible for them to have had knowledge of the prior work.
In situations where access to the original work is limited, whether due to genuine ignorance or physical impossibility, it is not possible to establish a borrowing, which means that one of the essential elements of infringement is lacking. Consequently, a defence based on the ‘accidental encounter’ theory relies heavily on demonstrating this impossibility of access.
However, establishing a negative fact in such cases remains particularly challenging. Case law acknowledges this pitfall by recognizing that the impossibility of access need not be absolute; it is sufficient for the defendant to establish through corroborating evidence that knowledge of the original work was objectively unlikely. The judge must then assess the specific circumstances of the case to determine whether the theory of a accidental encounter can reasonably be accepted.
The Court of Appeal determined that in this instance, the defendant had not provided sufficient evidence to demonstrate that access was unfeasible. The judges noted that L’Unique had received sufficient publicity to invalidate any claim of confidentiality, as evidenced by a theatrical release in France, screenings at several international festivals, a video cassette release accompanied by a legal deposit, occasional availability via video-on-demand platforms, and online distribution of excerpts and promotional material. The effective disclosure of the work beyond the French public, and the plausibility that any professional in the sector could have viewed it, is established by these elements. In light of the aforementioned circumstances and given the absence of evidence from the defendant companies to suggest that the screenwriters and producers of the contested episode were unable to access information regarding the film, the argument based on its alleged ‘confidential’ status is hereby refuted.
However, acknowledging the availability of the earlier work does not in itself constitute sufficient evidence to prove infringement. The later work must incorporate the specific combination of original elements from the earlier work in question. At this juncture, the court’s analysis challenges the plaintiff’s claim.
The court acknowledges that both works explore the concept of holograms within a musical context. However, this theme is prevalent in science fiction and does not, in and of itself, constitute a distinctive artistic expression. References such as Jem and the Holograms and Star Wars demonstrate that representing an artist using a hologram cannot, in itself, constitute wrongful appropriation.
The similarities mentioned seem to apply to general or limited ideas that are not protectable. The Black Mirror episode is part of a contemporary creative trend focusing on technological excess and the commodification of the image. By contrast, L’Unique adopts an approach oriented towards the theatrical potential of the hologram. As a result of the substantial divergence in message, staging, characterisation and narrative dynamics, it is not possible to reproduce the original combination of protected elements.
This ruling exemplifies the standardized approach to analysis employed in infringement cases. Although the original work’s availability suggests awareness on the part of its creator, it remains incumbent on the judge to verify that any alleged similarities relate to original elements and not to concepts that are part of the common creative heritage. In upholding the dismissal of the infringement claim, the Paris Court of Appeal reiterates that thematic similarity between two works alone is insufficient to prove wrongful appropriation.