Can Boob Tube Formats Endure Protected Past Times Copyright?

By Eleonora Rosati

The allegedly infringing TV gameshow

Can TV formats live on protected past times copyright? 

While this query has received an respond inwards the affirmative inwards a number of jurisdictions some the world [this spider web log recently reported on the latest judgment of the Italian Supreme Court to confirm eligibility for protection of this subject-matter nether Italian law], nether U.K. police pull things guide maintain been uncertain for a long time.

One of the reasons for such doubt is the number of the Opportunity Knocks case (Green v Broadcasting Corporation of New Zealand), inwards which a claim to the copyright inwards the format for a game demo failed. However, it is of import to yell upwards that ane of the principal reasons why the activity was dismissed is that no scripts were available at trial as well as inwards whatever instance they contained picayune to a greater extent than than full general ideas as well as concepts.

Leading U.K. copyright commentaries like Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), the courtroom held that a TV format can be potentially protected past times copyright, although inwards the specific instance the activity failed.

Background

The activity was brought past times Banner Universal Motion Pictures (BUMP, a U.K. company), inwards its capacity equally assignee of the rights to the Minute Winner format developed inwards 2003 past times a Danish citizen, against - with others - a Swedish TV production society (Friday TV). 

The claimant submitted that, farther to a 2005 coming together inwards Stockholm at which confidential information was disclosed, including the disclosure of catch-phrase “You guide maintain a infinitesimal to win it” [at the fourth dimension when the activity was brought inwards the U.K. Swedish courtroom had already ruled that no confidential information had been disclosed; the High Court of England as well as Wales declared that the displace of activity estoppel operated], Fri TV misused such information to railroad train a gameshow format: Minute to Win It. This demo outset aired inwards the U.S.A. inwards 2010 as well as was afterward broadcast inwards the U.K. inwards 2011. Rights to Minute to Win It were sold inwards over lxx countries some the world.

Kat format

The Minute Winner format

The format of the claimant is described inwards the Minute Winner Document presented bto the courtroom equally follows:

"MINUTE WINNER

Mini-format Game show

Daily or weekly show.

Or brusk ane infinitesimal betwixt primary programs.

Morning, Evening or Afternoon program.

One minute, or thirty minutes with several                                                                               winnings."

Minute Winner is farther described equally “a television receiver programme inwards which people are given ane infinitesimal to win something. WHERE? The programme takes seat inwards a studio (and inwards location: street, shopping mall or unexpected at people's homes). The programme is cheaper to create on location, equally it solely requires a cameraman, soundman, a host as well as a stopwatch PRIZES [examples are provided inwards the residue of the format document]The prizes are sponsored past times firms/companies inwards central with advertisements during the program."

The Minute Winner Document farther adds that "The combination of luck as well as pure coincidence is a factor that would brand people wishing that ane hateful solar daytime they could live on stopped on the street as well as live on given a adventure to win something on television."

As to showing times, the Document clarifies that "The programme tin live on shown daily (optional) equally a one-minute fill upwards in, earlier or after a primary program. Minute Winner tin too live on shown either equally a morning time program, afternoon programme or even out access prime number fourth dimension program."

The Document too contains the next disclaimer:

"Concept created past times Derek Banner/Bump Productions. Copyright 2003, all rights reserved. This format is protected nether the international copyright police pull as well as intellectual holding protection. It shall non live on transmitted, exploited, copied produced, used, disclosed or distributed, inwards purpose or inwards its entirety, without permission from its owner."

BUMP submitted that copyright subsists inwards the Minute Winner Document equally an master copy dramatic operate nether the CDPA. It did non submit that it was too a literary work, because such categories nether U.K. police pull are mutually exclusive.

Originality

As regards originality, Snowden J recalled that – farther to SAS v WPL [of class informed past times relevant instance police pull of the Court of Justice of the EU which arguably mandates something to a greater extent than than the merely “sufficient skill, labour or effort” traditionally indicated past times U.K. courts since University of London Press], what is required is “that the operate must live on an facial expression of the author's ain intellectual creation … This does not, however, hateful that every ingredient aspect of a operate must live on original. The operate must live on taken equally a whole, as well as tin include parts that are neither new nor ingenious.”

Notion of dramatic work

The courtroom so recalled that, although the facial expression ‘dramatic work’ is non defined inwards the statute, it must live on given its ordinary meaning. This, in Norowzian v Arks Ltd (No 2) was said to live on that of “a operate of action, with or without words or music, which is capable of beingness performed earlier an audience."

According to Snowden J, spell the unauthorized re-enactment of a recorded episode of a TV game demo or quiz demo would probable total to copyright infringement, what was at stake inwards this instance was NOT the unmarried episodes of Minute Winner, since the demo was never produced.

Dramatic Kat

The query was rather “whether what is ordinarily referred to equally the "format" of a television receiver game demo or quiz demo is separately capable of beingness protected past times the police pull of copyright.” 

The gauge noted that his is a query that has been considered inwards comparatively few cases.

A format equally a protectable dramatic work

Snowden J held that:

“it is at to the lowest degree arguable, equally a affair of concept, that the format of a television receiver game demo or quiz demo tin live on the acre of study of copyright protection equally a dramatic work. This is so, fifty-fifty though it is inherent inwards the concept of a genuine game or quiz that the playing as well as number of the game, as well as the questions posed as well as answers given inwards the quiz, are non known or prescribed inwards advance; as well as so that the demo volition incorporate elements of spontaneity as well as events that alter from episode to episode.” [para 43]

Requirements for protection

What is required for a format to live on protected is explained at para 44 of the decision:

“copyright protection volition non subsist unless, equally a minimum, (i) in that location are a number of clearly identified features which, taken together, distinguish the demo inwards query from others of a similar type; as well as (ii) that those distinguishing features are connected with each other inwards a coherent framework which tin live on repeatedly applied so equally to enable the demo to live on reproduced inwards recognisable form.”

The format at issue

Having affirmed the potential eligibility for copyright protection of TV formats, Snowden J yet excluded that Minute Winner could live on protected. In fact,

“tested against whatever of those requirements [indicated above], in that location is no realistic prospect of BUMP persuading a courtroom that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both really unclear as well as lacking inwards specifics, as well as fifty-fifty taken together they did non seat or prescribe anything resembling a coherent framework or construction which could live on relied upon to reproduce a distinctive game demo inwards recognisable form. The features were, inwards truth, commonplace as well as indistinguishable from the features of many other game shows.” [para 46]

Breach of confidence as well as passing off

The courtroom too dismissed the claims for breach of confidence (for the argue indicated above) as well as passing off, the latter on grounds that the claimant did non possess the necessary goodwill [including actual customers inwards the UK, equally per the Supreme Court conclusion in Starbucks] to succeed inwards its claim.

Conclusion

This conclusion sheds low-cal on an surface area of U.K. copyright that has remained uncertain for a long time, too due to the stiff as well as unopen organization of categories envisaged past times the CDPA.

However, equally the number of the instance confirms, wannabe holders of copyright inwards TV formats must pay substantial attending when drafting relevant documents, as well as render equally many details as well as information equally possible. Another crucial aspect when it comes to potentially commercially valuable plant similar TV formats is to draft as well as rely on robust non-disclosure agreements, too to offset the fact that relevant documents should live on sufficiently detailed.

Posted By Eleonora Rosati to The IPKat  AND consider UK High Court rules that TV Show Formats tin live on Copyright Protected by William Fry  here https://www.lexology.com/library/detail.aspx?g=b3d2a0b5-ec74-493f-855e-7f9a2a6e7f9e