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United Kingdom

NEW CLUES TO THE TREATMENT OF TV FORMATS IN THE UK COURTS: IPC MEDIA v HIGHBURY-SPL PUBLISHING

One of the UK's leading intellectual property judges (Mr Justice Laddie) has restated the key principles in the UK law of copyright on which format rights cases will be judged in the case brought by the publishers of Ideal Home (IPC Media) against the publishers of Capital Homes magazine (Highbury-SPL Publishing). The judge found that no copying had taken place, and the action failed (see our previous early warning of 7 January).

IPC claimed that its commercial rival (Highbury) had copied aspects of the design, subject matter, theme and presentational style of its magazine, Ideal Home. IPC sought to persuade the court that looked at as a whole, the style and design of the rival magazine were sufficiently similar to raise an inference of copying by the rival publisher. This allegation was comprehensively rejected by the judge, who, however, helpfully set out in a preamble to the judgment guidelines on how the court would approach such claims. The relevance to television formats was clear, since the claim by IPC amounted effectively to an allegation that the themes, styles and ideas in their magazine had been copied by their commercial rivals.

The judge drew his own analogy with television formats in his judgment by making reference to the decision in the Privy Council in Green v Broadcasting Corporation in New Zealand. In that case the television presenter Hughie Green sought to assert that the general structural format of his television programme called "Opportunity Knocks" was a dramatic work protected by copyright. Mr Justice Laddie quoted with approval this part of the judgment of Lord Bridge:

"It is stretching the original use of the word "format" a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or gameshow which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were "structure" or "package". This difficulty in finding an appropriate term to describe the nature of the "work" in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts, the performers and the talent show, the question and answers in the quiz show etc) and identified as "an original dramatic work" ... The protection which copyright gives creates a monopoly and "there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world ... The subject matter of the copyright claimed for the "dramatic format" of "Opportunity Knocks" is conspicuously lacking in certainty."

Mr Justice Laddie warned against, in all copyright cases, simply excluding all the distinctive elements between the two copyright works at issue, and concentrating exclusively on the similarities in an attempt to prove that an infringement has taken place. He described this as an attempt to "create similarity by excision". He stressed that the differences "may be just as important in deciding whether copying has taken place."

The judge also stressed that the law of copyright has never protected general themes, styles or ideas. Accepting that it is impossible to define the boundary between the mere taking of the general concept of ideas on one hand, and copying in the copyright sense on the other, he also cited with approval the judgment of the great US Judge Learned Hand in Nicholls v Universal Pictures who said:

"Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times may consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas", to which, apart from their expression, his property is never extended."

Mr Justice Laddie concluded his short but helpful exposition of the relevant copyright principles by quoting Lord Hoffman in Designers Guild Limited v Russell Williams (Textiles) Limited:

"Certain ideas expressed by copyright work may not be protected because, although they are ideas of literary, dramatic or artistic nature, they are not original, or so common place as not to form a substantial part of the work ...

Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution for the author's skill and labour, tends to lie in the detail with which the basic idea is presented."

The remarks made by Mr Justice Laddie in this case indicate that, at least so far as he is concerned, the courts will maintain the cautious approach to television format disputes that it adopted in the Green case, where a television format claim was made in an attempt to protect a largely unscripted talent show which nonetheless had a number of distinctive features. This indicates that the UK courts may approach the issue of television formats more conservatively than some other jurisdictions (see the earlier series of early warnings on our website concerning format claims in Holland and Brazil).

Jonathan Coad