BROADCAST 31 March,
do you stop your TV format idea being stolen?
The world’s first TV format sale took place 60 years
ago when What’s My Line? was sold for $50. That is
now half the cost of the taxi fare from Nice airport to Cannes.
Nowadays, the value of format trade is staggering.
Forbes recently valued the American Idol format at $2.5bn. Format trade is
now the stand-out phenomenon of the television and audio-visual industry,
and what makes it so fascinating is that, from a legal perspective, there
is still nowhere in the world where the existence of a TV format is recognised expressly by statute.
That means formats must be protected by a variety of
different, and at times arcane, legal means. In the UK, it is common to use
a mix of copyright, ‘passing off ’ and breach of
confidence. Orthodox copyright principles do not work - how do you protect
a television programme where you gather a bunch
of people into a house with no script and broadcast the footage of them
living their confined lives? However, Big Brother has made millions for Endemol in licence fees and
the company has been fierce in its protection of the format worldwide.
This legal uncertainty creates real problems for
in-house lawyers and business affairs folk. When should you buy a licence in a format, rather than develop an original
version? What do you do if your bestselling format turns up in the form of
a copycat programme in another territory (or as
an iPhone app, as one client recently
discovered)? How can you ensure that a format you are pitching to a
broadcaster will not turn up on screen a few months later without credit to
you or licence fee payments?
Because in-house lawyers are asked to deal with these
sorts of questions regularly, back in 2005 a group of media entertainment
practitioners, including myself, formed the
International Format Lawyers Association (IFLA). The idea came to me in a
lift at the Golden Rose Festival after I had walked down the viewing
corridor and seen a number of delegates sitting in front of the viewing
screens with video cameras.
It struck me as remarkable that the festival was
devoted to the buying and selling of formats despite this new species of
intellectual property not being generally understood, nor considered to be
easily protected by existing laws. Sadly, people don’t generally buy anything,
including IP, that they think they can safely
steal. That is why the IFLA has drawn up a list of guidelines and best
practice procedures on how to protect formats and deal with both preand post-broadcast issues.
Protection against IP infringement is now at the
forefront of many TV executives’ thoughts. MipTV
has a workshop devoted to creating formats and, more specifically, how best
to protect, and therefore sell, them. This is based on the seminar that has
that been requested and given to nearly all UK mainstream broadcasters and
The organisers are also
hosting a model Format Recognition and Protection Association mediation,
which has proved extremely effective as a method of dispute resolution.
Getting on top of this area really pays, as cheap to make and easy to sell
formats really are a licence to print money.
Jonathan Coad is a partner in
the media, brands and technology team at law firm Lewis Silkin