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United Kingdom

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 right'.

No copyright in an idea

Copyright 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.

The 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 you').

A total 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.

Monopoly vs. creative freedom

Since 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 teams, say.

For 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

If this all sounds bleak, there are nonetheless legal ways of protecting the fruits of creative endeavour.

(1) Copyright

Since 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.

(2) Confidentiality

When 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 programme ideas.

(3) Trademark registration

If 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.

(4) Unfair competition

In 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?.

(5) Contract

Another 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 series.

Robin Hilton