In Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor, the UK High Court clarified that television formats can be the subject of copyright protection provided the format:
- has distinguishing features; and
- is presented in a coherent framework.
The question of whether or not the formats of TV shows can be protected by intellectual property rights has been the subject of much debate. Until now, the leading case was Green v Broadcasting Corp of New Zealand, in which copyright protection was refused by the UK Privy Council to the producers of the hit show "Opportunity Knocks" on the basis that the distinctive features of that show lacked sufficient certainty to be considered a format, and lacked sufficient unity to be capable of performance.
The case in question was taken by Banner Universal Motion Pictures (the claimant), the assignee of rights to the Minute Winner television format.
The format of Minute Winner (the claimant's format) was set out in a document presented to the court which described Minute Winner as a television programme in which people are given one minute to win something in a studio, on the street or in a shopping mall.
The claimant argued that copyright subsisted in the description of the Minute Winner format as an original dramatic work under the UK Copyright, Designs and Patents Act, 1988.
The claimant also argued that information regarding the television format including the catchphrase "you have a minute to win it" disclosed at a meeting in Stockholm was misused by Friday TV (the defendant) to develop a similar gameshow: Minute to Win It, the format of which was near identical to Minute Winner.
Mr Justice Snowden explained that copyright cannot subsist in a television format unless:
- The television format has clearly identified features which distinguish the programme in question from others of a similar type; and
- These distinguishing features are connected with one another in a coherent framework which can be repeatedly applied so as to enable the television programme to be reproduced in a recognisable form.
On the facts, it was held that Minute Winner did not satisfy this test and could not be viewed as resembling a coherent framework as the format description was both unclear and lacking in specifics.
The decision confirms that there is no reason why a television show format cannot be protected by copyright provided it is set out in a detailed document setting out the format in a coherent, repeatable framework and explaining how it is distinguishable from other similar formats. Creators of television show formats should take the following steps to protect themselves:
- Set out the format for the show in a clear, repeatable framework.
- Keep detailed, dated records of all meetings, noting from whom ideas originate.
- Register trade marks for all titles, logos and catchphrases used in the show.
- Retain commercial rights under any licencing agreements.
- Require any third party to whom the format is disclosed to sign a non-disclosure agreement.