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Article Story:
FORMAT FORTUNES - IS THERE NOW LEGAL RECOGNITION FOR THE
TELEVISION FORMAT RIGHT?
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Date:
14.09.2004
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Most people who are involved in exploitation, global licensing
and merchandising of television programmes know the value of a
television format – whether it is Who Wants To Be a
Millionaire?, Big Brother, Wheel of Fortune, Pop Idol
or Family Fortunes. Licensing formats – where the creator of a
format licenses a broadcaster or production company in another
territory with the right to produce a version of that format - is a
massive global industry worth tens of millions of dollars. However
there is also a huge ‘copycat’ industry with rival ‘versions’ of
these formats being developed by rival broadcasters and producers.
The recent question troubling both the industry and the courts has
been whether or not television formats enjoy any legal protection
themselves and whether copycats can be stopped.
In UK law, the starting point when looking at the licence of
format rights is the 1989 case of Green v Broadcasting
Corporation of New Zealand where presenter Hughie Green
lost a Privy Council decision when he sought to establish a format
right to his programme concept Opportunity Knocks. Simply speaking
the law lords who made up the Court reaffirmed the general
principle in UK law that, on the facts of this case, there could be
no copyright in an idea and established that there could be no
copyright in the format of this game-show. It should be said that
the details of the format presented to the court were fairly
limited – the format was a talent show with the winner being the
act who registered the highest audience applause on a
‘clapometer’ and Green had a number of unique
‘cachphrases’. Some modern formats are far more detailed than
this.
In United Kingdom law, under the provisions of the Copyright,
Designs & Patents Act 1988, copyright subsists in original
literary, dramatic, musical and artistic works. With literary,
dramatic and musical works these must be expressed in a
permanent form. The definition of a literary work has been extended
to a timetable index, trade catalogues, street directories and
football fixture lists – provided there is sufficient skill,
judgement and labour involved. But Petersen J, giving judgement in
1916, determined that copyright was concerned with protecting the
‘expression of thought’ and not the ‘originality of ideas’.
Copyright does not require that an expression must be original –
just that it is not copied from another work.
This has led to a particular problem with television programme
formats in United Kingdom law where there seems to be no protection
in law of the basic idea in a format – despite the fact that there
is a growing business licensing these very format ‘rights’, however
unique and original. Whilst written plot of a play has, in England,
been held to be protected by copyright, the format to a quiz show
hasn’t, even when reduced to writing. This tension between what is
and isn’t protected has long tested the courts in many
jurisdictions. In 1930 the wonderfully titled United States Judge
Learned Hand pointed out that whilst an author could prevent the
use of the ‘expression’ of his ideas he could not prevent the use
of his ‘ideas’ to which protection never extended. The Judge
pointed out that there was no clear line between the two saying
that ‘Nobody has ever been able to fix that boundary, and nobody
ever can”. In simple terms anyone can write a horror story – the
idea of a ‘horror story’ is not protected – provided they do not
copy another work. But what about copying the basic outline ideas
of a vampire story from another book? Man gets bitten by Dracula,
man becomes vampire, man gets hunted down or saved - or using
a specific character such as a Frankenstien monster? it is here
that the law has some trouble determining what is and isn’t
protected in copyright law.
Two recent cases from the UK and the US support the position set
out in Green v Broadcasting Corporation of New Zealand; However
there have been two recent decisions in Brazil and Holland which go
some way towards giving television formats a ‘copyright’ protection
in their own right alongside a recent decision in India which again
protects the right of an author to stop the production of a
television programme ‘inspired’ by a plot taken from the author’s
book.
The UK case of Miles v ITV Network Limited
(2004) concerned a dispute over the rights to an ITV
programme, Dream Street. The claimant, James Miles, appealed the
decision of a Master who dismissed the claim on the ground that it
had no hope of succeeding. That decision has been affirmed by Mr
Justice Laddie. Miles alleged that in 1998 he supplied the ITV
Network with promotional material for his cartoon, Trusty and
Friends. The main character was a traffic light, and the ancillary
characters were "traffic furniture" such as bollards and cones. The
later ITV Dream Street had a recovery truck as its main character
and, as Miles conceded, the look and feel of the two programmes
were very different. Miles argued that there was sufficient
inference of copying for the matter to go to trial because of
similarities between the characters in the two programmes, and the
fact that they both featured traffic equipment. The creator of
Dream Street, however, produced evidence that designs for his
programme had been in existence since 1997, ie before Mr Miles had
sent his material to the ITV Network. The judge dismissed the
appeal since, on the evidence, the only similarity between Trusty
and Friends and Dream Street was the use of anthropomorphised
traffic equipment, which meant the claim was "hopelessly weak".
Perhaps more relevant was the case between US broadcasters CBS
and ABC in early 2003 in the US District Court NY. Here Judge
Loretta Preska reaffirmed the principle that there was no copyright
in an idea and that on the facts of that case that there were no
format rights in a television programme. CBS had claimed that the
programme I'm A Celebrity Get Me Out of Here was a copy of their
programme Survivor and sought injunctive relief against ABC to
prevent the programme going to air. ABC successfully argued that
their show was an original format and that injunctive relief was
not an appropriate remedy.
The position is the same in international law; The World
Intellectual Property Organisation (WIPO) state that Broadcast
content … can also be protected by copyright and related rights,
depending on the national legislation. Television formats, however,
have not been discussed at WIPO as subject of a separate
international protection.
However the recent Dutch and Brazillian cases are perhaps more
interesting. In Castaway Television Productions Ltd &
Planet 24 Productions Limited v Endemol (2004)
The Dutch Supreme Court of the Hague rejected the appeal by
Castaway Television Productions Ltd and Planet 24 Productions Ltd
against the decision of the Dutch Court of Appeal which in turn
confirmed the decision of the Dutch Court of first instance. The
trial judge had ruled that the format of Big Brother is not an
infringing copy of the Survivor format (the "Survive"
format). Castaway Television asserted that the Survive format
is a copyright work by virtue of its unique combination of 12
elements. Endemol denied that the Survive format was entitled to
copyright protection. It also denied that the Big Brother format
was an infringing copy of the Survive format. In June 2000 these
claims were dismissed at the trial of the action, and in June 2002
the Dutch Court of Appeal upheld that judgement. Castaway and
Planet 24 then appealed to the Dutch Supreme Court. The Dutch Court
of Appeal had taken a pragmatic view of the issue basing its
judgement on the similarities between the relevant programmes. The
Court concluded that:
"A format consists of a combination of unprotected elements...
An infringement can only be involved if a similar selection of
several of these elements have been copied in an identifiable way.
If all the elements have been copied, there is no doubt. In that
case copyright infringement is involved. If only one (unprotected)
element has been copied, the situation is also clear: in that case
no infringement is involved. A general answer to the question of
how many elements must have been copied for infringement to be
involved cannot be given; this depends on the circumstances of the
case."
The Dutch Supreme Court agreed with the Court of Appeal in
deciding that the Survive format was a copyright work, but that the
Big Brother format was not an infringing copy.
In May 2003 the author Barbara Taylor Bradford won an
injuction in the Indian Supreme Court to prevent transmission of a
260-episode Bollywood serial 'inspired' by her best selling novel
A Woman Of Substance. The novel tells of the heroine's
rise from an impoverished servant to become head of a business
empire; the Bollywood serial Karishma - the Miracles Of
Destiny charts a similar story. Both stories begin with the
heroine recounting her adventures in old age. Taylor Bradford won
an injunction at first instance in the Calcutta High Court and
although this was overturned on appeal the injunction was confirmed
in the Supreme Court.
A successful claim for breach of copyright has now been made in
Brazil based on the Big Brother format. Here the claimant was
Endemol, which owns the format. Endemol had entered into
negotiations with TV SBT of Brazil in the course of which Endemol
provided extensive information on the Big Brother format. TV SBT
chose not to acquire a license for the format and produced "Casa
Dos Artistas" (the Artist's House), which the Brazilian Court
described as a "rude copy". Endemol and its Brazilian licensee for
the Big Brother format (TV Globo) sued TV SBT seeking an injunction
and damages. The defendants claimed that a reality show is no
more than an idea, citing the lack of scripts. They claimed that
the format bible was "in reality a simple manual that describes
methods and procedures...; the idea of locking up people inside
places and observing them is not new; ... the work "1984" by George
Orwell deals with this theme...".
However, the Court heard expert academic opinion that;
"[a] Television programme format, in the sense employed by
the television business media, is a much wider concept that does
not only include the central idea of the programme but also
encompasses an extensive group of technical, artistic, economical,
business... information. The format of television programmes is not
just the idea of the programme, it is the idea and much
more."
The Court found that the Big Brother format enjoyed copyright
protection under the Brazilian law of copyright, and noted that
Brazil was a signatory to the Berne Convention (which gives a work
from another territory certain basic protections and in all events
accord the work the same treatment as they offer their own
nationals). It observed that the format
"is not limited to spying [on] people locked up in a house
for a certain period of time;.it contemplates a programme with a
beginning, middle and end, with meticulous description, not only of
the atmosphere in which the people will live for a certain period
of time but also the places where cameras are positioned. The
format consists of details such as the use of microphones tied to
the participants' bodies, linked 24 hours a day, music styles, the
form through which the participants will have contact with the
external world, activities, among others. The images and audio
situations captured for hundreds of thousands of people through the
daily inserts in the programming of the television services and
through the Internet with the consequent commercial exploitation is
also a unique characteristic of the format."
The judge did not spare the defendants, stating that; "the
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 made awards of damages to
Endemol of approximately £400,000, and to their Brazilian licensees
of over £1million.
Whilst both these cases support the concept of a copyright for a
programme format they are not binding in UK law. One must presume
that the position in UK law is still where Hughie Green reluctantly
left it – a format is an idea and in itself as an idea it cannot be
protected in copyright law.
That said, there is some protection which can be given by the
law: All television programmes actually made are
protected by the Copyright Designs & Patents Act 1988 (section
5); A name (and logo) of a programme (or a programme format)
can be trade marked if the name and/or logo is original,
distinctive and capable of graphic representation; scripts, set
designs, stage designs and lighting plots can be all protected by
copyright as can any original music used.
Ben Challis & Jonathan
Coad
REFERENCES
Green v Broadcasting Corporation of New Zealand (1989) RPC
700
University of London Press (1916) 2 Ch 601 at 608
Nichols v Universal Pictures 45 F (22d) 119 (1930)
Corelli v Gray (1913) 30 TLR 116 CA
Miles v ITV Network - Simkins Partnership Early Warning March
2004 (JKC)
CBC v ABC (2003) Law Updates January 2003
http://www.wipo.int/copyright/en/faq/faqs.htm
Castaway Television Productions Ltd & Planet 24 Productions
Limited v
Endemol v (2004) - Simkins Partnership Early Warning June
2004 (JKC)
Copied Book Plot Results In Indian Injunction: Law Updates
June 2003 and The Times, May 14th 2003.
Endemol wins Copyright Protection for Big Brother In Brazil: -
Simkins Partnership Early Warning June 2004 (JKC)
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