Typically, the creation of an audiovisual work (e.g. film for TV, talk show, game show, reality show, soap opera) requires several steps. The creation (a) begins with an idea; (b) develops the idea outlining (usually) the main content (“scheme/outline”) of the audiovisual work (for instance, the sequence of the scenes, the characteristics of the participants and the anchor, the criteria according to which the participants shall be chosen, and the title); and (c) develops the scheme further including creating the additional material necessary to achieve the end result: for instance, the script, the description of the set and some technical instructions for staging and shooting. These schemes/outlines ((b) and (c)) may be defined as format.
The creative process of the audiovisual work advances through the staging and the shooting, and finally, the creative process is completed with the final editing or with the direct broadcasting of the audiovisual work.
Format copyright protection
In Italy, a TV format can attract copyright. To achieve such protection the format shall meet the requirements provided for by the law, such as to the complexity and the creativity of its expression.
Whether or not a format receives copyright protection is a question of fact.
Italian case law highlights that the format which expresses only the idea of a TV programme without specifying and detailing the relevant content in a complex form and with a sufficient level of predetermination does not attract copyright (Court of Roma, 27 January 2000; Court of Roma, 31 May 2007).
Copyright protects the expression of the idea rather than the idea itself. Thus, the expression of the idea needs to be sufficiently complex since copyright does not protect an expression which merely coincides with the idea.
Italian case law is inconsistent as to the level of predetermination that a format must have in order to receive copyright protection.
Part of the case law requires the same level of predetermination that typically a script of a film has, for instance, specifying the narrative developments, describing the scenes, the characters, the dialogues and the main sketches (Court of Roma, 6 July 1999). Other case law does not require the same level of predetermination (Court of Bari, 26 October 2004). In any case, in order to attract copyright, it is not necessary that the level of predetermination avoid any room for spontaneity and unforeseeability of events (Court of Monza, 26 May 1994).
The expression of the idea also needs to be creative. The creativity needs to relate to the way in which the idea is expressed: such as (a) the structure of the concepts and the sequence of the arguments; as well as (b) the form of the expression.
Format copyright protection against copying
From a general point of view there is infringement when a subsequent work copies (in whole or in part) elements protected by copyright, belonging to a previous format.
The evaluation of infringement is a question of fact. Even if copyright does not protect the idea, in the evaluation of infringement the originality of the idea may represent a useful indication as to whether or not copying has occurred.
There is no infringement of a format when both the earlier and the later formats represent contents common in the state of the art and when, obviously, their expressions use common solutions (Court of Rome, 31 May 2007, the case decided by the court relates to reality show formats both based on the conflict between a daughter-in-law and mother-in-law. Both of their expressions used common solutions: the selection and the exclusion of the participants, the use of the phone to express a preference, life in common in the same house and the interviews of the participants.) In such cases minor variations to the later format may avoid a finding of infringement. The decision of the Court of Monza, 26 May 1994 is an example. In this case both the formats consisted of promoting contacts between singles: the previous format through dialogue with the anchor, the later format by means of a call and quiz. The Court decided that the dialogue between the anchor and the single did not represent an original solution to express the idea to promote the contact between persons. In addition the differences concerning the methods of contacting participants were sufficient to avoid infringement.
From a general point of view, a TV format attracts copyright. The level of protection will depend on several factors which shall be evaluated on a case by case basis, namely: the originality of the idea expressed, the complexity and the creativity of the expression and the appearance in a subsequent format (in whole or in part) of the protected elements characterising the previous format.