The format trade is now worth well over Euro 2 billion per annum
worldwide, and its value grows steadily. The American Idol format alone was recently valued at $2.5
billion. Despite these remarkable numbers, and the vast sums of money that
change hands daily in licence fees for television
formats, the law in this area remains far from certain. There is still no
statutory recognition anywhere in the world for this immensely valuable
species of intellectual property.
Until legislatures find time to make amendments to their copyright
statutes to include formats as a species of copyright work, we must
continue to draw lessons from the litigation there is on this subject. A
body of international case law is building up which will enable the
television industry - and the specialist lawyers that serve it - to advise
on this difficult area of the law.
The first specific recognition by any court of the existence of the
format in an unscripted broadcast programme (in
that case it was a radio programme) was in 2001
by the Supreme Court of Hungary. Since then decisions by courts in a number
of countries including Holland and Brazil have
confirmed that in appropriate circumstances a court will afford protection
to television formats.
The leading champion of format rights protection has been Endemol, which has recognized that it cannot expect
broadcasters to pay licence fees for formats
which Endemol will not protect by policing them
worldwide. Endemol has recognized the commercial
importance of an uncompromising attitude to infringers, and has brought
groundbreaking actions around the world to protect the value in its
formats. The most recent action was in Malta.
After a tense legal battle, on 2 May a Maltese court ruled in Endemol International's favor in its proceedings
against the broadcasters and producers of L-iSpjun, a copycat version of
the international hit format, Big
Brother. The offending series was broadcast on Malta's
national television station, Public Broadcasting Services (TVM), and Melita Cable TV, and was streamed live on Go Mobile on
its cellular phone network. Watermelon Media & Communications and
P&D Communications were the producers of the series.
Endemol had filed a claim against the broadcasters and
producers behind L-iSpjun,
claiming its intellectual property rights in the Big Brother format had been
infringed. Endemol had demanded that the
derivative show be pulled and was also seeking unspecified damages against
the producers. At the end of April, as part of the legal process, Endemol filed a series of precautionary warrants
against all parties involved.
The Maltese court upheld these warrants and ordered the seizure of
the TV studio equipment, props, tapes and other devices used as part of the
production of the show, as well as freezing other assets of the defendants,
including bank accounts. According to reports in the Maltese media there
was a "ping pong legal battle" with the local producers
persuading the court to sit in the evening in an attempt to keep their show
on air. In the end the show was dropped in the face of Endemol's
concerted legal action.
Wim Hoen, the
intellectual property rights manager at Endemol
International, commented: "We're
delighted with the Maltese Courts' decision which fully vindicates our view
that this production was in breach of our rights. We hope this sends a
clear message that this kind of infringement will not be tolerated and will
be acted upon."
How then do you give yourself the best chance of protecting your
format as a copyright work? What do you do if you find that you are
developing a format which is too close to another format for comfort? What
do you do about copycats in your own territory or overseas? The
International Format Lawyers Association (www.ifla.tv)
offers a practical seminar which answers those questions.