The licensing of television formats is a huge business, generating billions of dollars worldwide. Local versions of shows such as Pop Idol, Big Brother, Got Talent, X Factor, Wipeout and Deal or No Deal have been produced and broadcast around the globe. Whether or not television formats are unprotectable ideas or protectable works under copyright law is an open question.
Judicial opinion on this question is divided. In the UK, the case most-often cited on format rights is Green v. Broadcasting Corporation of New Zealand [1989] R.P.C. 700 (Privy Council) (“Green”). In Green, the court denied copyright protection to the UK talent show “Opportunity Knocks” on the basis that the show format was merely an idea for a game show and therefore not protectable under copyright law.
This approach is also reflected in two cases involving the weight loss reality program The Biggest Loser: Latimore v. NBC Universal, Inc. et al, 07 CIV 9338 (AKH) (SDNY Feb. 22, 2011) (“Latimore”) and Milano v. NBC Universal, Inc. et al, No. CV 06-3237-GAF (United States District Court, CD California) (“Milano”). In both cases, the courts granted summary judgment in favour of NBC and dismissed the claims of individuals alleging NBC infringed their copyright in similar show formats. In Milano, the court stated that the plaintiffs “FAT to PHAT” treatment did not meet the originality threshold to be protectable under copyright law and noted that several reality weight loss programs were already in the public domain before the plaintiff’s treatment was written. Although the “FAT to PHAT” treatment and The Biggest Loser contained similarities, the similarities were in elements that were not protectable. Similarly, in Latimore, the court found there was no substantial similarity between The Biggest Loser and the protectable elements of Latimore’s treatment for a weight loss reality program called “Phat Farm”. The only similarities between the two works were the generic idea of a weight loss show and the scenes a faire (expressions that are standard or common to a particular topic) that flowed from that idea, none of which were protectable. The plaintiffs met a similar fate in CBS Broadcasting, Inc. v. ABC, Inc. (SDNY, January 13, 2003) where the court rejected CBS’ claim that the ABC show “I’m A Celebrity Get Me Out Of Here” infringed CBS’ copyright in its Survivor format, and in Castorina v. Spike Cable Networks, Inc. (Dist. Court, E.D. New York, March 24, 2011), where the court rejected the plaintiff’s claim that the copyright in their treatment for a sports-themed reality show entitled “Two Left Feet” was infringed by the defendant’s sports-themed reality show called “Pros v. Joes”.
Big Brother has also been the subject of copyright disputes. In Castaway Television Productions Ltd. and Planet Productions Limited v. Endemol (unreported, Dutch Supreme Court, April 16, 2004), the producers of Survivor claimed that its format was entitled to copyright protection as a result of its unique combination of elements and alleged that Big Brother infringed the copyright in Survivor. The Dutch Supreme Court held that the Survivor format was protectable as a copyrighted work but denied there was substantial similarity between the two shows. In a Brazilian case, Endemol v. TV SBT (unreported, 2004, Brazil) the court held that Big Brother was protected under Brazilian copyright law and found there was substantial similarity between Big Brother and the Brazilian copycat show Casa Dos Artistas.
In Canada, there is no copyright in ideas per se, only in the tangible expression of those ideas. Section 5(1) of the Copyright Act (the “Act”) states that copyright subsists in every original literary, dramatic, musical and artistic work. Section 3(1) of the Act provides that copyright in relation to a work “means the sole right to produce or reproduce a work or any substantial part thereof in any material form whatever...”. Section 27(1) of the Act states “it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything by this Act only the owner of the copyright has the right to do”.
How have format rights cases been decided in Canada? In Hutton v. Canadian Broadcasting Corp. [1989] A.J. No. 1193 (Alta. Q.B.) (“Hutton”), the plaintiff, Douglas Hutton, created and co-produced a video countdown show with the CBC called Star Chart. Three years after the cancellation of Star Chart, the CBC produced Good Rockin’ Tonight (“GRT”), another video countdown show featuring Terry David Mulligan, the host of Star Chart. Hutton commenced an action for copyright infringement. The court found that, unlike GRT, Star Chart satisfied the definition of a dramatic work and had sufficient originality to be protected as a copyrighted work. The court noted a number of similarities between the two programs but concluded such similarities relatively unimportant. The similarities included the host, the number of commercial breaks and proportionality to the length of each program, the number of videos shown in each show, the playing of more than one video back to back and the fact that both shows featured countdowns. In terms of dissimilarities, the programs were of different lengths, (Star Chart was a half hour program, GRT was one hour or more), no interviews were done in Star Chart but extensive use of interviews was made in GRT, there was very little or no viewer participation in Star Chart but a substantial amount in GRT, and Star Chart did not offer an announcement of coming events in the area, but GRT did. In conclusion, the court stated “although the evidence demonstrated similarities between the shows, they have also revealed some important dissimilarities which, in my view, outweigh the similarities (qualitatively speaking) and demonstrated the programs were dissimilar”. Accordingly, the plaintiff’s copyright infringement claim was dismissed.
In Cummings v. Global Television Network Quebec, Limited Partnership [2005] Q.J. No. 6707 (Que. S.C.), the plaintiff alleged that the defendant copied his concept for a television show centred around a musical performance competition. The plaintiff had submitted to the defendants an outline for a show entitled “Dreams Come True” prior to the defendant’s production of a show called “Popstars”. The court found that the plaintiff’s concept, which had never been produced, possessed insufficient details to be an original work and was therefore not entitled to copyright protection. Although this disposed of the copyright claim, the plaintiff also alleged delictual (extra-contractual) infringement of his rights in the Dreams Come True concept under the Quebec Civil Code and the court therefore undertook a substantial similarity analysis. The court found that the similarities between the two shows were generic and unimportant in nature and that it was impossible to consider them copies. These generic similarities included seeking amateur singers and dancers and using coaches in order to improve their skills, producing a record with chosen artists and the eventual organization of a Canadian tour. As in Hutton, the court found the differences between the two concepts to be more important than the similarities. Popstars was only open to young performers rather than musicians, singers, composers, lyricists and dancers of all ages. The Popstars show clearly picked winners and losers whereas the plaintiff’s concept was a no-win no-lose contest. Moreover, the Popstars show focused significantly more on the careers of the winners than the Dreams Come True concept contemplated. The court also agreed with the defendants that a key element of the Popstars program was the “behind the scenes” elements which made the show more of a docu-drama or docu-soap than a singing competition. The trial decision was upheld by the Quebec Court of Appeal [2007] J.Q no. 1730 (C.A.).
It is clear that from the foregoing that certain jurisdictions are reluctant to grant copyright protection to television formats and those that have recognized television formats as copyrighted works have been reluctant to allow format owners to successfully assert their rights in copyright infringement proceedings against third parties. This has led to the establishment of the Format Recognition And Protection Association (FRAPA), an international association dedicated to the protection of formats and lobbying for statutory recognition of format rights. Unless and until format rights have been statutorily recognized, television formats that are unique in concept and have distinctive protectable elements will be afforded a greater scope of protection. As I noted in my recent article on trade-mark rights and format titles (Tuning in to the Dangers – Protecting Television Formats, World Trademark Review, February/March 2011) protecting the brand of the format and being first to market with that brand can be just as important if not more important than protecting and fighting an uncertain battle to enforce copyright in the format.
This article originally appeared in the May 6, 2011 issue of The Lawyers Weekly published by LexisNexis Canada Inc.
