TV formats are big business – from the X-Factor (recreated in over 50 countries) to Who Wants to Be a Millionaire? (in over 100). There is money to be made in trading in reality TV and gameshow formats but the ability to exploit them is not straightforward. There is no separate property right in a TV format per se, but it can be protected as a bundle of separate rights: trade marks in names, slogans and other branding, goodwill in trading under a distinctive get-up associated with a show, and contractual and privacy obligations on the parties involved. Together, these rights can create a de-facto monopoly on a given format, which in turn allows the owner to license, sell and otherwise exploit it as a valuable asset.

There are, however, clear gaps in such protection which can make TV formats vulnerable to copying – especially where a creator has not yet traded under a show nor taken any other protective measures. This is a problem for the TV industry on an international scale and one that The Format Recognition and Protection Association (FRAPA) was set up to combat. A potential solution, championed by FRAPA, would be to allow formats to be protected under copyright law. A number of countries already expressly provide such protection, but the position in the UK is less clear.

To obtain copyright protection in the UK, a format must fall within a limited number of rigid categories of work – the most applicable being dramatic works. Whether or not this is possible is a question that has not been definitively determined. The leading case in this area is the Privy Council decision of Green v Broadcasting Corporation, which denied copyright protection to the format of Opportunity Knocks, but did not rule out such protection for future formats. Subsequent cases have not advanced this position substantially.

The recent High Court decision in Banner Universal v Endemol Shine has provided some welcome consideration of this issue. Here, the claimant tried to claim copyright protection for the TV format Minute Winner as a dramatic work, on the basis of a document outlining the basic format. On the facts, the Court found that the documentary evidence did not provide sufficient details to enable the claimed work to be reproduced or performed, which was fatal to the copyright claim. This said, the Court did remark that it would have been possible for a format to be protected if it had been identified with sufficient clarity. The warning here seems to be that creators of formats must ensure that their ideas are documented in as much detail as possible if they wish to rely on copyright.

It is worth noting that this case was dealt with by way of summary judgement, at a case management conference, and that the comments on the scope of dramatic copyright were non-binding obiter dicta. As such, this case does not settle the issue and the wait for judicial certainty continues. It does, however, provide a valuable insight into the approach and direction we might expect the Courts to take if and when we get there.