FORMAT FORTUNES - IS THERE NOW LEGAL RECOGNITION FOR THE
TELEVISION FORMAT RIGHT?
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.
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.
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.
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.
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.
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
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.
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
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."
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.
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.
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...".
the Court heard expert academic opinion that;
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."
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
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."
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.
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.
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
what is really needed in the UK and indeed other jurisdictions
is a clear decision (or legislation) to set out the broad parameters
of protection of a format (or otherwise) and a answer to the basic
question of whether or not Green v Broadcasting Corporation of
New Zealand is still good law and whether a format can be protected
as a copyright
Challis & Jonathan Coad