On Friday, the Federal Court of Australia issued an important decision on the protection of television formats under Australian copyright law. See here

The proceedings involved allegations that the producers and broadcasters of the reality TV programme, HotPlate, had infringed channel 7’s copyright in literary and dramatic works associated with its My Kitchen Rules (MKR) programme. Channel 7 sought an interlocutory injunction against channel 9 pending final determination of its copyright infringement claims.

The dramatic works asserted to be infringed involved, amongst other things, format and plot elements for the MKR programme recorded in, for example, a Production Bible. Although the Court indicated that the format and plot elements in the Bible were sufficient for copyright to subsist as a dramatic work, it was not satisfied the portions appropriated in the HotPlate programme were sufficiently original to amount to substantial reproduction of the copyright work:

To reproduce in a material form elements of a dramatic work which are in themselves not original will not normally constitute an infringement of copyright because what has been taken will not be a substantial part of the copyright work … The nature of the argument that Nine proposes to advance at trial, as I understand it, is that Seven’s dramatic work is a successful but nonetheless unimaginative collection of unoriginal ideas and situations found in earlier reality television programs identified in Ms Officer’s evidence. Because Seven’s evidence does not specifically address these matters, I am unable to dismiss Nine’s argument as weak or inherently unlikely to succeed.

Channel 7 did not, therefore, have a sufficiently strong prima facie case for an injunction to be granted. The balance of convenience also weighed in Channel 9’s favour. The broadcasters of HotPlate, the Court reasoned, would have difficulty re-establishing the show’s momentum if the show were halted by an injunction and then shelved until the substantive proceeding was concluded.

Before this case the extent to which Australian copyright law protected the format elements for reality TV programmes as dramatic works was unclear. Readers will be familiar with the Hughie Green case in which Green’s action for copyright infringement failed because he was unable to show that the format elements of his game show, Opportunity Knocks, amounted to a dramatic work. In the US, an injunction to restrain ABC from broadcasting Glass House for copyright infringement based on the plot and feature elements of CBS’s Big Brother programme similarly failed. See here.

It remains to be seen how these proceedings will play out at final hearing. Nicholas J’s interlocutory judgement, nevertheless, indicates that the format and plot elements associated with reality TV programmes are potentially protectable as dramatic works under Australian copyright law but that the protection afforded to such works may be comparatively thin, extending only to the truly original elements, and their combination, in the work alleged to be infringed.