Dr Venkat IyerBarrister

Senior lecturer, university of ulsterLaw commissioner, northern ireland (UK)

TV Formats: Trends and Developments

Introductory

Increasing commercial value of format (e.g. American Idol - >$2.5 b; 45% of all TV exports in the UK)

Extent of legal protection in national legislation weakNo provision in international treaties/normsHowever, some protection offered by case law in

particular jurisdictionsSubject-matter of sizeable litigationCourts have generally tended to view formats as

generic ‘ideas’ rather than as creative works in their own right

Basic principles

For a programme format to be protected under copyright law, two main conditions have to be satisfied:- the format must be sufficiently original- it must have been developed into a detailed documentary form

Evidence trail is very importantThe creative process from conception to final

product needs to be documented‘Format’ can range from an outline of a show to a

detailed product consisting of know-how, copyright, designs, trade marks and other valuable information

The dividing line between unprotectable ‘ideas’ and protectable ‘expression’ is not clear

Strategies for exploitation of formats

Formalisation and sale of know-how which cannot be easily gleaned from watching the show (e.g. sourcing contestants, organising audience participation) – these are recorded in the format bible and supplied under confidentiality agreements

Careful management of brand image to make copying difficult (e.g. by registering trade marks, merchandising)

Putting in place established distribution pathways and using retaliatory measures against pirates (e.g. threat of non-supply of other programmes)

[Research by Bournemouth University, 2008)

Representative case law

Green v. Broadcasting Corpn. of New Zealand (1988): action by creator of UK-based ‘Opportunity Knocks’ game-show against NZ show of same name – despite many commonalities (e.g. similar name, catchphrases, clapometer), the claim was rejected (‘copyright does not protect the originality of ideas’; ‘the subject-matter of copyright claim for the ‘dramatic format’ of OK is conspicuously lacking in certainty’; ‘there is not the ‘sufficient unity’ needed to be capable of performance; the plaintiff had not produced the script for OK)

Miles v. ITV Network (2004): action by creator of a cartoon programme ‘Trusty & Friends’ against ITV programme ‘Dream Street’ – the look and feel of the latter was different from those of the former, but the central feature – traffic equipment – was common to both. Held, no infringement

Representative case law

Castaway TV Productions & Plant 24 Production v. Endemol (2004): action by creator of reality show ‘Survivor’ against another similar show ‘Big Brother’. Despite similarities, held there was no infringement because the original show had 12 key elements which had not been copied in an identifiable way in the other show

Barbara Taylor Bradford v. Sahara TV (2003): action by author of ‘A Woman of Substance’ against producers of Indian TV serial ‘Karishma’ on the grounds that the storyline was similar – held there was no infringement because there was no copyright in ideas

Representative case law

Meakin v. BBC & Ors. (2010): action by creator of game show ‘Cash Call Challenge Live!’ against BBC show ‘Come and Have a Go If You Think You are Smart Enough’ – held there was no infringements despite similarities because BBC was able to show that its show was developed without reference to Meakin’s proposal (which had been rejected by the BBC)

Decision of Court of Milan (Italy) of 12 Mar 2004: granted copyright protection to the format of ‘Big Brother’ and held that protection is available if:- the format is detailed and has some degree of originality;- the format provides sufficient elements to characterise in a definitive way the nature and development of the events in the show

Representative case law

Other cases of relevanceCBS v. ABC (US, 2003): action by creator of ‘Survivor’ against creator of ‘I’m a Celebrity, Get Me Out of Here’ – held untenableEndemol v. SBT TV (Brazil, 2003): action by creator of ‘Big Brother’ against creator of ‘Casa Dos Artistas’ who had been offered a licence for BB but who had rejected it. Held, there was infringement because of ‘whopping’ similarities between the two showsABS-CBN v. WilProductions (Philippines, 2010): action by creator of show ‘Wowowee’ against creator of show ‘Willing Willie’ – damages of P127 m sought, reportedly pending

Possible legal implications

CopyrightOther IP rights (trademark, designs etc.)Breach of confidenceContractPassing off

Protection through trade bodies

Format Recognition and Protection Association, FRAPA (based in Germany): allows for registration of formats on its Registry; strengthens evidential base for future claims to originality; provides a mediation service in disputes (with average costs of between $15000-30000 compared to $150000-400000 for litigation)

Practical hints

Creator should put his ideas for the format down in writing, with as much detail as possible

Every stage of the development process should be documented, including dates, times, and names of those contributing to the development (even minutes of ‘ideas’ meetings)

Where logos are used, these should be registered as designs or trade marks under national legislation (in all major jurisdictions where the format is likely to have a market)

It may also be a good idea to register and deposit a copy of the format with a trade body such as FRAPA

Practical hints

Visual representation should be given utmost importance – a striking set with visual props and detailed illustrations (which can be registered as an artistic work for copyright purposes) will be helpful

During the course of development, if the format – or a part of it – is shown to anyone, it would be advisable to have them sign a confidentiality or non-disclosure agreement; it would also help if all material relating to a format being developed is marked ‘confidential’

The format should be innovated and refreshed on a regular basis to keep it from being illegally copied

Practical hints

Value can be added to the format brand by spin-offs such as mobile phone applications, merchandise etc.

It might help also to register a web domain name and to use social networking sites to increase the popularity of the format

Efforts should be made to market – and license – the format as widely as possible

Up to a point, exclusivity and confidentiality clauses in employment contracts with those involved in developing the format will help

All the information, however minor, about the format should be included in a ‘format bible’ which should be kept up to date

Practical hints

Where unsolicited format proposals/ideas are received (esp. by post), it is a good idea to return them unread where possible

Where any such proposal/idea is read, the date of receipt should be recorded and stored safely

When a format is updated, it is worth retaining a copy of the original with proper notation (version…)