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