The popularity and globalisation of reality television programs has increased the value of television format licensing over the last decade or so.
This was discussed briefly in SMS revenue models and e-marketing legal compliance and is illustrated in the post today, TV format licensing checklist.
For television program developers and networks, this Lightbulb post uses three court case studies to ask under intellectual property law – How can they avoid unlawfully copying existing television formats?
Compared to prior decades there seems to be, in Australia and elsewhere, more court cases involving television format copyright claims.
Responding to this, in 2004 a few lawyers grouped themselves under the grand title of the International Format Lawyers Association. In our firm we developed a Television Program Ownership Protection Guide. We provide it as practical advice for clients developing television programs or video material.
The question we are addressing goes away if TV program developers and networks do not copy. No copy, no breach of copyright. Simple.
Yet watching programs can help generate program ideas and as you watch you are influenced… and may copy some elements consciously or unconsciously (both are exposed to legal liability). The above question returns.
To generate program ideas your viewing diet of format-based programs can include internationally licensed programs with a spin-off made for Australia. That category includes The Biggest Loser, Big Brother, Idol, Dancing With the Stars, Who Wants to be a Millionaire, and Queer Eye For The Straight Guy.
In a separate category are licensed programs with no spin-off made for Australia. They include Suppernanny, The Apprentice, The Bachelor and So You Think You Can Dance.
You may also view programs which involve a tight format, but are not exactly reality shows. Many of them are game or quiz shows (current examples in Australia being Rockwiz and 1 vs. 100) and here we can even include Iron Chef.
You come up with your idea and now want to trade. What’s the context? Reality television forms part of international trade in audio-visual products. It is traded using television program licences, a species of intellectual property licences.
They are founded on contract law and copyright law, among other law. For simplicity, we’ll focus here just on copyright.
Fortunately for traders, copyright law is fairly similar worldwide.
We take a practical focus in this article, using three case studies in lessons on how you can avoid allegations of unlawful copying, broadcasting or distribution of existing television formats.
Case citation: Nine Film & Television Pty Ltd v Ninox Television Ltd  FCA 1404
|TV format rights were the subject of litigation when in 2005 Channel Nine (an Australian television network) sued a company called Ninox over allegations Ninox had made that Ninox’s TV format had been copied in Channel Nine’s hit TV program, The Block.|
Ninox claimed The Block was a television format taken from “Dream Home”, a New Zealand renovation program owned by Ninox. What gave the case at least some traction was that Channel Nine had itself produced an Australian series of “Dream Home”, but decided to come up with its own concept, The Block.
In Australian Federal Court proceedings, The Block was ruled to have been independently created by Nine. The court found similarities between the programs too broad to constitute breaches of Ninox’s copyright in “Dream Home”. Elements such as the tone, mood and overall thrust of the programs were considered to be different.
Lesson: Copyright law will not protect a mere idea. So don’t gush saying: “I’ve got this great idea, a reality show on weight loss!” Copyright law only comes into play when such an idea is recorded in a “material form”. I’ll get excited if you can say: “I’ve got this great idea, a reality show on weight loss! Here is a 10 page proposal describing the show based on a more detailed study and draft format bible I’ve developed.” In passing, note that confidential law will protect just an idea.
Case citation: TCN Channel Nine Pty Ltd v Network Ten Pty Limited  FCAFC 146
|Channel Nine was also the plaintiff in another case, this one was not a television format case. It is relevant because it puts a lightbulb on how much you can copy of a TV program.|
The Channel Ten talk show named The Panel used 20 excerpts from various Channel Nine programs, including The Midday Show and Wide World of Sports. The excerpts ranged from 8 to 42 seconds in length and contained topical events from the media.
Channel Nine sued Channel Ten, the Australian television network broadcaster of The Panel. A question in the case was whether each excerpt formed a “substantial part” (a phrase from the Copyright Act) of the program from which it was copied. The court discussed the application of the copyright law defences of “fair dealing” and defences available for criticism and review of a copyright work and reporting news.
The court concluded that 11 of the 20 excerpts used by Channel Ten infringed copyright law and that 9 of the excerpts were not substantial parts or fell within the fair dealing provisions of the Copyright Act 1968 (Cth).
Lesson: If you must copy then don’t copy a “substantial part” of a copyright work or stay within the fair dealing legal defences or exceptions, which since December 2006 in Australia include parody and satire.
|Records and the supply of a production or format bible came into play in a Big Brother court case in Brazil in 2004. They are useful to have when you seek to sue an infringer.|
It was a big case, but who was the biggest loser?
Endemol (which owns the Big Brother format) entered into negotiations with TV SBT of Brazil in the course of which Endemol provided extensive information on the Big Brother television program format.
TV SBT chose not to acquire a licence for the format and instead produced Casa Dos Artistas (the Artist’s House). This prior relationship between the parties recalls similar facts in The Block case.
On seeing Casa Dos Artistas Endemol and its Brazilian licensee for the Big Brother format (TV Globo) sued TV SBT seeking an injunction and damages. TV SBT, the defendant, claimed that Big Brother was no more than an idea, citing the lack of scripts.
In arguing its position TV SBT claimed that Big Brother’s format bible was “in reality a simple manual that describes methods and procedures…; the idea of locking up people inside places and observing them is not new; … the work “1984” by George Orwell deals with this theme…“.
The Brazilian court disagreed. It described Casa Dos Artistas as a “rude copy“. It made awards of damages to Endemol of approximately £Sterl. 400,000, and to their Brazilian licensees of over £Sterl. 1million. TV SBT was the biggest loser.
Lesson: To succeed against unlawful copying, keep records of confidential communications and create a format bible. Contact us for advice which will be accompanied by a template.
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