A new musical show which is showing across the UK has been forced to pull out of forthcoming fixtures as a result of threatened legal action by Talkback Thames, the company which own rights to the television show, the X Factor.
The musical, eXtra Factor, is largely based on the format of the X Factor, and provides a satirical look at "reality" television talent shows, with a celebrity cast posing as wannabe singers hoping to become pop stars.
The producers of the musical were advised that further legal action would ensue if the show continued. The basis of Talkback's proposed action appears to be the assertion that the musical infringed the X Factor brand and logo, and that there was also a copyright infringement in relation to the format of the musical being similar to that of the X Factor.
Television show formats are hugely important in commercial terms to broadcasting and production companies, producing large profits by exploiting the fundamental ideas that give rise to the show formats. Over the years there have been a number of legal actions brought on the grounds of copyright infringement in the context of television programme formats.
Such actions have encountered difficulties frequently, especially when we consider that copyright protects the expression of an idea, rather than the idea itself. Accordingly, the concept which underpins the format of a show cannot be afforded protection under copyright laws. The idea will acquire copyright protection once it has been expressed in a material form – such as being reduced to writing, or fixed on film.
The X Factor was also the subject of court action based on copyright infringement in 2005, when 19TV, the company which owns rights to the television shows Pop Idol and American Idol, raised proceedings against the producers of the X Factor, claiming that the X Factor format was explicitly based on the Pop Idol format. The action was settled, and therefore the question of to what degree is television programme format protected by copyright was left unanswered on this occasion.
The question of copyright in television show formats was also considered recently by an Australian court in relation to two home renovation programmes – Dream Homes and The Block. On giving its judgement, the court found that copyright could exist in a particular show format, although there are certain elements which are generic to a particular type of programme that cannot be protected – for example, holding auditions and having a panel of judges would be common to the talent quest format.
The reality television show, Big Brother has also been embroiled in copyright infringement proceedings in the Netherlands when the makers of "Survivor", another programme in the reality genre, claimed that Big Brother had copied several key elements of the Survivor format. In its ruling, the court stated that a programme format consisted of a number of unprotected elements, and copyright infringement would be an issue if a number of these elements had been copied in an identifiable way.
Copyright law is regulated by statute in the UK, in particular the Copyright Designs and Patents Act 1988. It is perhaps time that clear principles in relation to the protection of television show formats are introduced and incorporated in statute. What is clear is that actions of this type will undoubtedly increase due to the increasing popularity with viewers and financial importance to production companies of programmes such as the X Factor.