PROTECTING TELEVISION FORMATS
Who doesn't want to be a millionaire? Television formats
for game shows, quizzes, sitcoms and docusoaps are big business.
The rights to use formats overseas are being bought and sold every
week for large sums of money. Despite their apparent high value,
however, format rights do not exist under English law. It is so
difficult to define a television format that English legislators
have always shied away from creating a legally enforceable 'format
copyright in an idea
may help but it will not protect an idea. Copyright protects the
expression of ideas: for example, a play, a novel, a picture or
a tune. If I have a great idea for a photograph, only the photo
will be protected, not my creative thought. Likewise, a brilliant
programme idea needs to be fully elaborated and set down if it
is to be protected by copyright.
leading court case on television formats concerns Opportunity
Knocks, the television talent show which ran for many years on
British television. Hughie Green devised, wrote and presented
Opportunity Knocks. Unknown to Mr. Green, the Broadcasting Corp.
of New Zealand started their own television talent contest, also
called Opportunity Knocks. Not only was the title the same; so
too was the game show. They even borrowed his distinctive clapometer,
which measured audience applause, and his catchphrases ('For Mr
X, Opportunity Knocks', 'This is your show folks and I do mean
rip off you may think but when Hughie Green sued all the way to
the highest court in 1989, he lost. Their lordships in the Privy
Council said that 'The subject matter of the copyright claimed
for the dramatic format … is conspicuously lacking in certainty'.
Although there were a number of isolated distinctive features
in each show, there was also a lot of material which changed from
show to show and there were no scripts as such. The Court said
that there was insufficient certainty in Mr Green's format for
it to be a dramatic work capable of copyright protection.
vs. creative freedom
that case there have been many attempts to introduce protection
for formats but the problem has always been the same. How can
one define a format without allowing the creation of monopolies?
The current plethora of cookery programmes might not have been
possible had the creator of the first of these obtained a monopoly
simply because it was the first to devise a format which brought
together certain elements - a kitchen, a host and two competing
diversity to exist in television - indeed in the creative world
generally - legislation must be careful about creating monopolies.
Providing protection to creators must be balanced against stifling
the free development of programmes based on general ideas.
Practical advice for protecting formats
this all sounds bleak, there are nonetheless legal ways of protecting
the fruits of creative endeavour.
copyright only protects the expression of an idea, remember to
record on paper the exact details of the format. It is a good
idea to prepare a bible containing a fully elaborated treatment
with sample scripts or sketches, set designs, floor plans and
logos, costumes, theme tunes, etc.
information is disclosed in circumstances that are plainly confidential,
the person receiving that information is under a legal duty not
to disclose it to anyone else. This may help format creators who
pitch ideas to producers and broadcasters. Ideally, they should
get the recipient to sign a confidentiality letter. Failing that,
they should state that the information is being submitted in confidence.
There is also a UK Code of Practice to which the UK terrestrial
broadcasters have subscribed. This only covers written submissions
which are distinctive and original and whose original features
are clearly identified. Although it adds nothing to the existing
law, it does create a transparent system of receiving and administering
you have a catchy title (e.g. Who wants to be a Millionaire? Have
I Got News For You?) which you or an overseas buyer of the format
may wish to exploit, particularly for merchandising purposes,
it may be worth registering it as a trade mark. This can be an
expensive process, however, because separate trade mark registrations
are generally required for different countries and different categories
of products and services.
certain countries there are laws designed to protect against unfair
competition, such as the marketing law in Denmark that Celador
used to prevent the exploitation of a Danish show which was remarkably
similar to Who Wants to be a Millionaire?.
way in which successful format owners have created an asset is
to sign exclusive agreements with talent (stars/hosts) or other
providers of knowhow (question-setters/writers/technicians). Know-how
is often exactly what buyers of formats are after and they will
pay good prices if a producer can provide the exact recipe to
enable a show to be replicated overseas.
A format certainly needs to be more than a mere idea if it is
to be protected under the laws of intellectual property. Think
of it, rather, as a compendium of ideas which should be meticulously
collated to form a unique, distinctive plan for a programme or