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The format factor: television format rights

April 2006 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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The rise and rise of reality television has once again put the issue of format rights into the spotlight. The most recent dispute concerned Simon Cowell's show, The X Factor. 19TV made Pop Idol with FremantleMedia Ltd, a production company that also worked on The X Factor. It issued proceedings for copyright infringement against FremantleMedia Ltd, Simon Cowell and his production company, Simco Ltd, claiming that The X Factor was a blatant copy of Pop Idol and American Idol. In the UK, Pop Idol was a huge hit for two series and, in the US, American Idol, which is now into its fifth series, has had the highest ever ratings on Fox Television. The case settled before trial and so the precise ambit of format rights remains untested in an English court since the 1989 case of Green v Broadcasting Corporation of New Zealand.

Until such time as it is tested, the debate as to whether or not a format can be adequately protected rages on, and the television industry is simply left with a range of inadequate causes of action and legal rights to try to protect a format. This article looks at the issues faced by the television industry and how best to protect a format.

Generic ideas or creative works?

Television formats are vulnerable to plagiarism since it is widely presumed that they are not protected by existing copyright legislation. The courts have generally taken the view that formats are merely generic programme ‚Äėideas', as opposed to creative works in their own right, and have consistently maintained that mere ideas cannot be protected by copyright law. One reason may well be that to do otherwise would give rise to the bigger media players grabbing a monopoly of the simple ideas, which would result in an injustice to the smaller players. So, although there is a growing format industry in which programme formats are licensed around the world, creating significant revenues, the lack of legal protection has led to the risk of ‚Äėformat theft'.

The word ‚Äėformat' itself is a broad and imprecise term. At one extreme it is used to describe the outlined structure of a game show or factual entertainment programme, while at the other (in the case of well-established and successful formats) it is an extremely detailed mix of know-how, copyright, designs, trade marks and other confidential and commercially valuable information and intellectual property rights.

The central problem is that if the courts will not recognise the basic concept of the programme format as capable of protection in its own right, what is its commercial value? Surely the commercial strength to exploit formats depends, in no small part, on the capacity to protect them. If intellectual property rights to formats are not recognised and the legal protection is uncertain, then the commercial value of formats is also uncertain.

The X Factor case is one of a number of recent ‚Äėcopycat' cases involving formats for reality television programmes. As shall be explained below, some of these cases have supported the concept of copyright protection for a programme format, while others have taken a starkly different view. Although all of the cases have been litigated in foreign jurisdictions, and so are not binding under English law, they are nonetheless useful in terms of indicating the different attitudes to format protection that exist and how a format might be protected under existing copyright law.

Copying with variations

In 2003 the US broadcaster CBS issued proceedings against another US broadcaster, ABC, claiming that I'm a Celebrity... Get Me Out Of Here copied the format of its Survivor show. CBS sought injunctive relief against ABC to prevent I'm a Celebrity... from airing. ABC successfully argued that its show was an original format and that injunctive relief was not an appropriate remedy.

Judge Preska gave short shrift to the complaints raised. Indeed, she did not think that the claim put forward by CBS (namely, that the programmes were substantially similar) was even of sufficient merit to justify the proceedings being brought before a court. Significantly, she went on to say that ‚Äėtelevision was a continual evolutionary process, frequently involving borrowing from what has gone before'. This would appear to give broadcasters and production companies (in the US at least) the green light to copy other television formats. But it also raises an interesting question, namely how does one know where to draw the line between copying and inspiration? Undoubtedly, the line is very fine. Indeed, some people in the industry believe that a lot of television and, particularly, reality television, is entirely derivative. In other words, programme formats stand on the shoulders of what has gone before and often involves copying with variations. One US Court of Appeal judge considers that we should be measured in our condemnation of plagiarism because copying with variations is an important form of creativity.

Support for the concept of copyright protection for TV formats

The Format Recognition and Protection Association (FRAPA) was formed in the UK in 2000 by industry figures from across the globe to try to protect formats and mediate disputes. It believes that the basic concept underpinning a television programme should attract copyright protection if it meets the thresholds of creativity, originality and substantiality generally applicable to copyright works.

Two recent cases in Holland and Brazil have provided some indication that other courts are coming around to the notion of supporting the concept of copyright protection for a programme format, provided that the idea is sufficiently developed and recorded in permanent form.

Survivor and Big Brother

In Castaway Television Productions Ltd and Planet 24 Productions Ltd v Endemol, Castaway Television claimed that the format of the TV programme Survivor (the ‚ÄėSurvive' format) was entitled to copyright protection from Endemol's television programme, Big Brother, by virtue of its unique combination of 12 elements. Endemol denied this.

It also denied that the Big Brother format was an infringing copy of the Survive format. The Dutch Court of Appeal stated that:

‚ÄėA format consists of a combination of unprotected elements... An infringement can only be involved if a similar section of several of those elements have been copied in an identifiable way...'

The Dutch Supreme Court agreed with the earlier Dutch Court of Appeal decision in deciding that the Survive format was a copyright work and should therefore attract copyright protection, but in this case decided that Big Brother was not an infringing copy.

Big Brother and Casa Dos Artistas

A successful claim for copyright infringement was made in Brazil based on the Big Brother format. Here the claimant was Endemol, which owns the format. Endemol had entered into negotiations with a production company in Brazil, in the course of which Endemol provided extensive information on the Big Brother format. The production company chose not to acquire a licence for the format and produced Casa Dos Artistas, which was strikingly similar to Big Brother. The Court found that the Big Brother format attracted copyright protection under the Brazilian law of copyright. It said that the format for Big Brother contemplates a programme ‚Äėwith meticulous description' and ‚Äėthe whopping similarity between both programmes does not stem from chance but from a badly disguised and rude copy of the format of the programme Big Brother'. The Court awarded Endemol substantial damages.

Authority on format rights: Opportunity Knocks

Until recently, claimants have generally sought protection of their format by claiming copyright ownership of the literary elements. The starting point when looking at the licence of format rights is the case of Green v Broadcasting Corporation of New Zealand, in which Hughie Green sought to establish a format right to his programme concept, Opportunity Knocks. The Privy Council reaffirmed the general principle in English law that there is no copyright in an idea and established that there could be no copyright in the format of this game show.

The details of the format presented to the Court were, however, fairly limited. Indeed, Green was unable to show any written scripts for the show. Formats these days tend to be far more detailed and recorded in permanent form, and therefore many lawyers consider that this case is out of date.

Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd

The 1994 case of Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd agreed with the ruling in Green that English copyright law cannot prevent the copying of a general idea. However, the judge in that case, Jacob J, also stated that copyright law can protect the copying of a detailed idea. He said that:

‚Äė... it is a question of degree where a good guide is the notion of over-borrowing of the skill, labour and judgment which went into the copyright work.'

This case seems to show that provided an idea is developed sufficiently within the particular work concerned (in this instance, a literary work) then the court will afford copyright protection to it.

Protection for musical, dramatic and artistic elements of the programme

Once the format is in production, a broader range of copyright - in the musical, dramatic and artistic elements of the work - may be available.

Norowzian v Arks Ltd

The Court of Appeal ruling in the case of Norowzian v Arks Ltd and others was instructive on whether or not a cinematographic work can be a dramatic work for the purposes of copyright protection. Although the Court confirmed that it could be protected both as a film and as a dramatic work, it stated unequivocally that no copyright subsists in mere style or technique, even when such techniques may be innovative or a major feature of the film's uniqueness. A director's art resides in projecting to the audience his interpretation of what is usually a pre-existing work - whether in the form of a book or, so far as a television programme is concerned, a treatment - in respect of which a major contribution is made by the camera work and editing.

Therefore, if the style or technique does not attract copyright protection then the question that has to be asked is what aspect of a director's art will be protected as a dramatic work? Although this case is helpful to the entertainment industry in the sense that it affirms that a cinematographic work can be a dramatic work, it is difficult to see where the boundaries of dramatic copyright protection can be drawn.

Nova Productions Ltd

In the recent cases of Nova Productions Ltd v Mazooma Games Ltd and others and Nova Productions Ltd v Bell Fruit Games Ltd, the High Court considered whether or not a video game could be categorised as a dramatic work for copyright purposes. The judge found that the video game was not a dramatic work for a number of reasons.

First, he said that ‚Äėit is not a work of action intended to be or capable of being performed before an audience'. Although the game had a set of rules, the particular sequence of images displayed on the screen depended largely on the manner in which it was played. The sequence of images would not be the same from one game to another even if the game was played by the same individual. There was therefore no sufficient unity within the game for it to be capable of performance.

Secondly, the judge found that the features of the video game were drawn at a very high level of generality and did not have sufficient certainty. Copyright protection creates a monopoly and there must be certainty in the subject matter of such monopoly to avoid injustice to third parties.

Finally, the original development notes in which the claimant contended that the dramatic work was recorded was considered by the judge to be a literary work. It could not therefore be a dramatic work. The development notes contained a whole series of different ideas, only some of which found their way into the finished game. They did not constitute a single work which was capable of being performed before an audience.

Comment

What seems clear from the Nova cases is that the courts are unlikely to afford copyright protection to a format unless it can identify with it in copyright terms. What this means therefore is that format-makers must consider what elements distinguish their format - eg catchphrases, lighting, regular features, the name of the programme, etc - and then record them in permanent form so that they essentially create a blueprint for the construction of a television programme.

Some of the more successful formats, such as Who Wants to be a Millionaire? and Pop Idol, have been sold to foreign broadcasters around the world on the basis of their entire production package (that is, the treatment, the production bible, the programme bible, music, scripts, lighting, name, etc) and have been easily adapted in local markets. Others, such as Big Brother, are to a large extent improvised, but have nonetheless been adapted abroad.

The cases referred to above show that it is possible to assert that a television format (that is, the treatment, the bibles, the development notes, etc) attracts literary copyright; and that once it has been produced the finished product may also attract dramatic copyright. What is still unclear, however, is precisely what is required for a television format to be afforded copyright protection. Until such a case is tried in court, broadcasters and production companies should ensure that the production package is as detailed as possible, so that the format is sufficiently clear.

The issues faced by the television industry and, more particularly, format owners arise from a lack of clarity as to the protection afforded by the present copyright law. What is really needed is a clear decision setting out the broad parameters of protection of a format and an answer to the question as to whether the Green case is still good law. It seems that, with the continuing rise of reality television and the potentially huge amounts of money up for grabs, it is only a matter of time before the courts will have to consider these issues. It will be long overdue.

Green v Broadcasting Corporation of New Zealand [1989] RPC 700

CBS v ABC (2003) US District Court NY

Castaway Television Productions Ltd and Planet 24 Productions Ltd v Endemol (unrep, 16 April 2004, Dutch Supreme Court)

Endemol v TV SBT (unrep, 2004, Brazil)

Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275

Norowzian v Arks Ltd and others (No 2) [2000] FSR 363

Nova Productions Ltd v Mazooma Games Ltd and others; Nova Productions Ltd v Bell Fruit Games Ltd [2006] EWHC 24 (Ch)

 

By Rebecca Leaver. Rebecca worked on 19TV Ltd v FremantleMedia Ltd (1) Simon Cowell (2) Simco Ltd (3) on behalf of 19TV.

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