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In April 2003, Castaway Television Productions Limited and Charlie Parsons withdrew their claim against the Granada Media Group that the format, I’m a Celebrity…Get Me Out of Here! (“Celebrity”) was an infringement of their rights in Survivor. Their withdrawal means that the last format rights dispute to go to trial remains some 15 years ago between Hughie Green and the New Zealand Broadcasting Corporation (“BCNZ”) over his huge hit programme, Opportunity Knocks. Despite the fact that the programme broadcast by BCNZ was virtually identical to the one created by Hughie Green, he lost at every instance and the Privy Council ruled that Hughie Green’s scripts “did not do more than express a general idea for a talent quest, and hence were not the subject of copyright”.

If the Opportunity Knocks case were to be heard again in the current legal context, would the outcome be the same? Based on his experience of conducting the proceedings on behalf of the Granada Media Group in Celebrity, the writer is confident that it would have a far greater chance of success, since both the television industry and the attitude of the Courts to such issues have radically changed since then. One reason is the enormous commercial value of original formats, as evidenced by the very substantial sums of money for which they change hands at international trade fairs, and by agreements between broadcasters throughout the world. If the law is to properly protect commercial endeavour, then when a new species of intellectual property (such as formats) is recognised by the television industry, the law must step in to protect them.

However, the impression given by the wide reporting of the Celebrity case is that the outcome shows that format rights are not capable of protection under UK jurisdiction. The rationale for these assertions is that the Granada Media Group successfully defended the action concerning Celebrity despite the fact that the format of that programme was very similar to that of Survivor. In fact, the formats were fundamentally different.

Judge Loretta Preska ruled in parallel US proceedings concerning the same programmes that a claim put forward by CBS was not even of sufficient merit to justify being brought before a court. CBS sought an injunction to prevent rival ABC from airing the US version of Celebrity at the beginning of this year. It considered that because Celebrity featured a group of participants, in a remote and inhospitable location, performing tasks in return for rewards, it was a copy of Survivor, and therefore an infringement of their rights. Although Castaway and Charlie Parsons were not a party to the US proceedings, the applicable law and principles that were applied mirrored very closely those which would have been applied by any trial judge in the UK.

In reaching her very clear and informed conclusions Judge Preska identified no less than 14 distinctive elements which differentiated the two programmes. Given the escalating commercial value of original formats, the elements identified by her provide excellent guidance as to the way in which the courts here (where the relevant law is very similar) would view two formats in such a dispute. For example, the contrasting tone was all important to Preska who found that Survivor was unalterably serious whilst the tone and feel of Celebrity was of comedy. In addition the contrasting concept and feel of the programmes was vital with the elimination sequence, the production values and the live element highlighted as relevant in contributing to this.

Preska also considered the different benefits to the winner which were significant in shaping the contrasting plots of the programmes. The winner of Celebrity received only the honour of being King or Queen of the jungle compared with the “life changing” prize of one million dollars encouraging the “cut-throat approach” of Survivor.

Preska’s approach illustrates how a judge will try to identify (with the assistance of the parties) what the key elements of the “original” format are, and which are the key elements of the alleged infringing copy. If the key elements of the “original” are themselves in use in a number of formats, then this will clearly make the claim more difficult. Where there are substantial differentiating characteristics, as there were in this case, then a court will readily conclude that no copying was undertaken to create the subsequent format.

Neither Preska’s judgment, nor the outcome of the UK litigation therefore by any means rule out a successful action to prevent infringement of an original format. The laws of copyright, passing off, and confidence may all assist. Furthermore, there are a number of practical steps which you can take in order to improve your chances of success should litigation be necessary.

Jonathan Coad