FORMAT WARS
Tara Dean and Sean Egan
Arts Professional, April 2005
Television formats are increasingly valuable to UK television producers. Even before
the Communications Act 2003, which enabled producers to own more of the rights in
programmes they produced, creating recurring series was the Holy Grail for producers
looking to improve profitability. And yet the legal basis of the copyright ownership of
formats, on which many of the most valuable formats are based, is not necessarily
certain.
Celador International, the producer of “Who Wants to be a Millionaire” and “You Are
What You Eat”, is reportedly considering legal action against 12 Yard Productions,
the format producer behind hits such as “In It To Win It” claiming that 12 Yard’s new
diet and nutrition show “Eat Yourself Whole” infringes copyright in the “You Are
What You Eat” format. The dispute is the latest in a series of high profile copyright
infringement suits considering whether copyright can be an effective means of
protecting television formats. Last October it was reported that Simon Fuller’s
company 19TV, which produced Pop Idol may take legal action against Simon
Cowell, the Pop Idol judge and co-creator, and his companies SimCo and SyCo
claiming that Cowell’s new talent show “The X Factor” copied the Pop Idol format.
The surge in litigation is no surprise as the exploitation of television formats has
expanded into a multi-million pound industry. The X Factor has already secured its
first commission overseas with Australia's Network Ten reportedly paying millions
for the rights to broadcast. The show looks set to join the list of blockbusters like “Big
Brother” and “Pop Idol” whose television formats are licensed worldwide.
The ‘Opportunity Knocks’ case of 1989 still reflects the UK position on formats and
copyright. Huey Green famously brought proceedings against the Broadcasting
Corporation of New Zealand who had broadcast a similar talent show under the same
title in New Zealand. Green claimed that copyright subsisted in his show, as there
were a number of characteristic features, which were repeated in each show. These
features were, in addition to the title, the use of the catch phrases, the use of a
‘clapometer’ and the use of sponsors to introduce competitors. The Privy Council
concluded that these elements were too imprecise to qualify as a dramatic work. It
viewed the format as a collection of ideas not protectable by copyright.
Today’s light entertainment programmes have more detailed formats than Green’s
Opportunity Knocks. Green claimed his format had four unique features, it is reported
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that 19TV are claiming that The X Factor has copied over thirty features of the Pop
Idol format including background elements such as music, structure and lighting.
Very few format disputes have gone to court and fewer still have been decided. This
is due to the cost of litigation and no doubt in part to the uncertainty of the result as
well as not wishing ot alienate others in the market with whom there may be existing
of potential relationships. As a result, when looking for a possible approach it is
worth looking abroad. A Dutch decision illustrates the issues and how they may be
resolved. The creators of Survivor, Castaway Television, sued the producer of Big
Brother for infringing the copyright work in their format. Castaway Television
claimed that the format of the show consisted of 12 unique elements and was entitled
to copyright protection. One element is that the contestants of both shows are voted
out with the last remaining contestant winning a big prize. The Dutch Supreme Court
confirmed its Court of Appeal which decided that though the format was a
combination of unprotected elements the detailed format of the Survivor show as a
whole was a copyright work. Even so it found that Big Brother did not infringe the
work. It found that insufficient of the elements of the format had been copied in an
identifiable way. This pragmatic approach may well find favour in the UK if a court
has to consider an alleged infringement of a highly developed and stylised format.
Though the copyright position may be ‘difficult’, originators of formats make
extensive efforts to ensure that the risk of ‘rip-off’ versions is minimised. The X
Factor dispute appears to have featured non-copyright aspects such as the use of
confidential information and using Pop Idol staff who may have been prohibited from
working on rival shows. In addition well developed shows will also look to use
trademarks as a means of maintaining the integrity of the ‘brand’.
In the absence of a definitive case or specific legislation on the point, practitioners
have needed to address the most pressing concerns. Industry figures from around the
world have come together to develop market guidelines with which major
broadcasters have agreed to comply. This seeks to assuage the perception that
broadcasters have not always been prepared to treat such rights with sufficient respect.
FRAPA, the Format Recognition and Protection Association set up in April 2000
consists of more than 100 television and broadcasting companies from around the
world which aims to establish an environment in which television formats are treated
as protected by copyright. The organisation runs a format registration scheme and
operates a mediation scheme. Such moves help as to the other non-copyright means
of protection, but in a highly competitive market where the stakes are even higher the
trend towards litigation seems inevitable.
Tara Dean is a member of and Sean Egan is head of the Arts and Media
Department of Bates Wells and Braithwaite.
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