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TV Formats & Copyright: What’s the X-Factor?

26 October 2017
Freddie Besant

The extent to which you can protect a TV format has long been a muddy area of UK law. The high profile spat between Simon Fuller and Simon Cowell was perhaps to decide - or at least provide guidance on - this area of law once and for all. Fuller took Cowell to court arguing that X Factor stole the format from his Pop Idol, but unhelpfully for lawyers, the case settled on the doors of court.

 

The value of a particular TV format can be significant – as can be seen in the recent high profile move of the Great British Bake Off or the move of Big Brother (for a reported £100m) to Channel 5. This is particularly so where a format can easily be repackaged and marketed worldwide (for example X Factor has over 50 different versions in different jurisdictions). All of which means unsurprisingly that the protection of such formats from others copying is extremely important.

 

In light of the obvious scale and value of various big-name TV formats it might be slightly surprising to some that there is no ‘TV format’ right to sit alongside that of the long-established literary or dramatic works in English copyright law. Instead those seeking to protect a format have been forced to rely on an awkward combination of the law of confidence and passing-off.  Neither of these is straightforward. 

 

With a claim for breach of confidence, if a format is already out there in the public domain and perhaps has already been made , then a claim in confidence is not possible.  If it is not - let’s say an individual approaches a broadcaster or a production company with an idea – then such companies are notoriously unwilling to agree to sign an non-disclosure agreement which unequivocally would establish the necessary degree of confidence, in case they already have a similar project in the pipleline. 

 

A claim for passing off is difficult too, as you have to establish the necessary goodwill in the original format.  This is not possible with an idea which has yet to be made, and if the format has been ripped off overseas, then whilst it may enjoy goodwill in the country where it was originally broadcast, it is unlikely to enjoy goodwill in the country where the rip-off show is aired.   

 

The problem with a claim in copyright is that at its heart a TV format is, generally speaking, a relatively fluid and hard to define concept – it focusses around an idea which is then allowed to play out in any number of ways. For example, a set of rules which govern a quiz or some central concept to base a reality TV show upon – contrast this with a television programme, which would necessarily have detailed scripts and fully formed characters. In other words, it is concerned more with an idea, rather than an explicit expression of that idea, which is what makes it particularly difficult to attract protection under copyright law.

 

This however may be about to change – the door to copyright protection has potentially been left slightly ajar as a result of a recent High Court case (Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch)).

 

In brief, the case concerned a new format called ‘Minute Winner’, a gameshow where each participant had… you guessed it… a minute to win. The claimant attempted to argue that its format should attract copyright protection as a dramatic work and for various reasons the claimant was unable to rely upon the law of confidence. In this instance, the claimant was unsuccessful in their attempt however Judge Snowden did note that “it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work” (paragraph 43). Snowden then went on to outline what, as a minimum, would be required for copyright protection to subsist, namely:

 

1. there needs to be a number of “clearly identified features” from which it is possible to distinguish the format from any other comparable formats; and
2. that such distinguishing features are coherently connected in a framework which can then be repeated so as to enable reproduction in another recognisable format.



This issue here is clear – in order to meet these requirements, the format needs to be as close to fully formed as possible, with a relatively high level of detail. Furthermore, it is worth emphasising that such detail would not necessary guarantee protection, which means the law of confidence, and a detailed non-disclosure agreement, must remain the primary method of protection. With that said however the decision will no doubt be of interest to those who seek to hold copyright in TV formats – and the advice must be to represent as fully as possible the central idea behind the format at the outset, for example by drafting a fictional script for a notional first episode and describing in as much detail those concepts which set the format apart from the current market.

 

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