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Format Rights Licensing in the Television Industry(Posted: 05-02-2009)

By Silas Brown

You are the Weakest Format, Say Goodbye to a Licence!

Formatted TV shows have long been a popular form of television entertainment, and the trend for formatted TV shows has seen a large expansion in recent years. Format television shows like the X-Factor, Pop Idol, Britain’s Got Talent, I’m a Celebrity…Get Me Out of Here!, Who Wants to be a Millionaire, Big Brother, The Weakest Link, The Apprentice, Fame Academy, Strictly Come Dancing, Dancing On Ice, Survivor, Shipwrecked have been significant commercial successes for their originators.

The licensing industry for formatted TV shows has become a brisk trade amongst production companies and television broadcasters, whereby the originators of a formatted TV show pitch their show format to a channel. If a formatted TV show is a success on one channel, it may then be licensed for broadcast on other channels internationally. A popular formatted TV show which starts out in one country may be re-broadcast or even re-made under licence for audiences throughout the World. Money is made from deals relating to the licensing of the so called “format rights” in such shows, in other words the intellectual property rights and know how of the originator.

The legal position on “format rights”, however, is uncertain. Copyright, which protects against the direct copying of physically manifested creative works, does not protect against copying of a general idea or concept. In some circumstances, though, it may be possible to establish that copyright provides a degree of protection for the general format elements of a formatted TV show. “Format rights” are not legislated for under English law, although steps have been taken through case law over the past twenty years towards some legal recognition of such rights.

In the late 1980s, a case on format rights in the English TV game show Opportunity Knocks showed that, at that time, English law did not recognise “format rights.” In that case, a legal action was brought by the originators of Opportunity Knocks against the producers of a nearly identical programme produced in New Zealand which included similar layouts, processes and catchphrases. However, the English Courts held that Opportunity Knocks did little more than express a general idea for a talent quest and the law of copyright did not protect such general ideas or parts of them.

By 2004, however, it was clear that the English Courts had moved on slightly when in a case about animated formatted TV shows, the Court found that whilst an originator of a formatted TV show cannot own copyright in the underlying “idea” behind the show, a systematic and clearly identifiable collection of copyright works making up a formatted TV show might in the right circumstances give rise to “format rights” in the whole which may be infringed. In another case in the U.S., one TV channel sued the other claiming that their formatted TV show, I’m A Celebrity…Get Me Out of Here!, infringed copyright in their formatted TV show Survivor. Similarly, whilst the U.S. Courts decided there was no infringement (because there is no copyright in an idea per se), the U.S. Courts did indicate more generally that it would be possible for U.S. law to recognise “format rights” in television programmes in the right circumstances.

In Holland, the Courts have established that TV show formats are copyright works but only in circumstances where such formats are systematically documented and evidenced. In several cases, the Dutch Courts have found that “format rights” will be infringed in circumstances where a TV show format is made up of a combination of documented, identifiable elements and a substantial number of that collection of identifiable elements have been copied in another formatted TV show. Furthermore, in Brazil, the Big Brother format was held by the Brazilian Courts to be protected by copyright when the originator of the Big Brother TV game show format (Endemol) successfully sued a potential licensee who decided not to take a licence from Endemol but rather to produce their own sufficiently similar competing version of the show instead. Endemol was awarded damages against the infringer.

The TV licensing industry already clearly recognises the value in formatted TV shows and treats such formats as commodities to be licensed despite the uncertainty in the legal position over whether or not there is actually any property in such rights. It still remains the case that simply copying a general idea for a television programme will still not infringe copyright in a formatted TV show. For example, the basic ideas behind Celebrity Big Brother, I’m a Celebrity…Get Me Out of Here!, and Celebrity Love Island are very similar, but since the formats and reproduction are sufficiently different there is no infringement of copyright.

Accordingly, when originators are devising new formats for TV shows with a view to licensing those formats, they should think very carefully about protecting their potential ownership of any legal property they may own in such formats, before pitching them to broadcasters. In particular, the best advice would be for such originators to create and maintain a TV show format “bible” of documentary evidence relating to each of their new formats which may include such items as trade mark registrations for the show’s branding, a written show production guide, illustrated set and layout design, written scripted sections, written schedules of catch-phrases and show specific phrases to be used, written copies or sound recordings of show specific music/ jingles as well as any other format related documentation or recordings which may be relevant. This way the originator will be put in the best possible position to claim legal ownership in the formats they may devise which can only benefit them in the TV show licensing industry.

Silas Brown is a solicitor specialised in intellectual property law at specialist IP firm BRIFFA. You can view more information about BRIFFA and Silas’ profile at the firm’s website at www.briffa.com. You can also contact Silas by telephone on 020 7288 6003 or email him at silas@briffa.com.

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