United Kingdom

DUTCH SUPREME COURT CONFIRMS FORMAT RIGHTS DECISION: CASTAWAY v ENDEMOL

The titanic battle over ownership of the Big Brother format appears finally to have been resolved by the Dutch Supreme Court after a legal battle lasting well over three years. On 16 April the Supreme Court of the Hague rejected the appeal by Castaway Television Productions Ltd and Planet 24 Productions Ltd against the decision of the Dutch Court of Appeal which in turn confirmed the decision of the Dutch Court of first instance. The trial judge had ruled that the format of Big Brother is not an infringing copy of the Survivor format.

The "Survive" format on which the action was based was the same format which Castaway sought to protect in the Celebrity action (see our early warning of August 2003). It was originally produced under the name Expedition Robinson in the summer of 1997 in Sweden, and then subsequently in other European countries. At around the same time Endemol Productions was developing a format, which eventually became Big Brother, that was broadcast in the autumn of 1999.

Castaway Television asserted that the Survive format is a copyright work by virtue of its unique combination of 12 elements. It also claimed that Big Brother is an infringement of the copyright in that format, and made an additional unjust enrichment claim against Endemol.

Endemol denied that the Survive format was entitled to copyright protection. It also denied that the Big Brother format was an infringing copy of the Survive format. In June 2000 these claims were dismissed at the trial of the action, and in June 2002 the Dutch Court of Appeal upheld that judgment. Castaway and Planet 24 then appealed to the Dutch Supreme Court.

The Dutch Court of Appeal had taken a pragmatic view of the issue basing its judgment on the similarities between the relevant programmes. The Court concluded that:

"A format consists of a combination of unprotected elements... An infringement can only be involved if a similar selection of several of these elements have been copied in an identifiable way. If all the elements have been copied, there is no doubt. In that case copyright infringement is involved. If only one (unprotected) element has been copied, the situation is also clear: in that case no infringement is involved. A general answer to the question of how many elements must have been copied for infringement to be involved cannot be given; this depends on the circumstances of the case."

The Dutch Supreme Court agreed with the Court of Appeal in deciding that the Survive format was a copyright work, but that the Big Brother format was not an infringing copy. It also confirmed all the other elements of the Court of Appeal decision in finding for the defendants (Endemol).

We now have at least two decisions (one in Holland one in Brazil) where copyright has been found to subsist in a reality television format. The Brazilian court found that the Big Brother format enjoys copyright protection, and the Dutch court that the format of Survivor also has copyright protection. Television formats are at last hitting the legal radar elsewhere in the world: they will surely be recognised by the UK legal system in the future.

Jonathan Coad