 |
Bulletins Story:
ENDEMOL WINS COPYRIGHT PROTECTION FOR BIG BROTHER IN
BRAZIL
|
Date: 11.06.2004
|
The international trade in format rights is now worth $1billion
annually, but formats remain a species of intellectual property
which has scarcely hit the radar of most jurisdictions around the
world. The Dutch Court of Appeal recently found a television
format to be a copyright work, although a claim of breach of
copyright based on that format failed. However, a successful
claim for breach of copyright has now been made in Brazil based on
the Big Brother format.
Endemol (which owns the format) 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. 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.
Television formats have now been traded round the world for over
50 years. The judgment of the privy council in Green
which 15 years ago rejected a claim in copyright over the
"Opportunity Knocks" format does not
reflect either modern industry practice or the view taken by Courts
where this issue has been tested in the 21st century. If the
legislature does not step in, format protection in this country
will surely come when the right set of facts is presented to the
Courts.
Jonathan Coad
212
e-bulletins are for general guidance only. Legal advice
should be sought before taking action in relation to specific
matters. Where reference is made to Court decisions facts
referred to are those reported as found by the Court. Please
note that past bulletins included in the Archive have not been
updated by any subsequent changes in statute or case
law.
<< back to ebulletins
|