United
Kingdom
THE REAL LESSONS CONCERNING FORMAT RIGHTS FROM THE CELEBRITY/SURVIVOR
PROCEEDINGS
The last format rights dispute to go to trial was some
15 years ago, when Hughie Green sued the New Zealand Broadcasting
Corporation over his huge hit programme, 'Opportunity Knocks'.
Despite the fact that the programme broadcast by the New Zealand
Broadcasting Corporation was virtually identical to the one created
by Hughie Green, he lost all stages of his case right up to the
Privy Council. The Privy Council ruled that Hughie Green's scripts
of his programme 'did not do more than express a general idea
for a talent quest, and hence were not the subject of copyright.'
Based
on our experience of conducting the proceedings on behalf of the
Granada Media Group in their successful defence of the action
brought against them by Charlie Parsons and Castaway Productions
Limited, we consider that if the Hughie Green case had been brought
in the current legal context, he would have had a far greater
chance of success, since both the television industry and the
attitude of the courts to such issues have radically changed in
the last 15 years. One reason is the enormous commercial value
of original formats, as evidenced by the very substantial sums
of money for which they change hands at international trade fairs,
and by agreements between broadcasters throughout the world. If
the law is to properly protect commercial endeavour, then when
a new species of intellectual property (such as formats) is recognised
by the television industry, the law must step in to protect it.
However,
the impression given by the wide reporting of this case, and some
of the comment which appears to have been based on those reports,
is that the outcome shows that format rights are not capable of
protection under UK jurisdiction. The rationale for these assertions
are that the Granada Media Group successfully defended the action
concerning 'I'm a Celebrity... Get Me Out of Here!' despite the
fact that the format of that programme was very similar to that
of 'Survivor'. In fact, the formats were fundamentally different,
and the very strong and clear judgment of Judge Preska in the
US proceedings concerning the same programmes makes this absolutely
clear. Although the US judgment was the result of an application
for an injunction, the judge came to very clear and informed conclusions
(after seeing the programmes, reading depositions and hearing
several witnesses concerning how different the two programmes
were), and identified no less than 15 distinctive elements which
differentiated them. She concluded that the plaintiffs in that
case (CBS - who were the 'Survivor' licensees in the US) had failed
to show 'sufficiently serious questions going for the merits of
the case to make them a fair ground for litigation.' In other
words, the judge did not think that the claim put forward by CBS,
that the programmes were substantially similar, was even of sufficient
merit to justify the proceedings being brought before a court.
Neither
that judgment nor the outcome of the UK litigation therefore by
any means rule out a successful action to prevent infringement
of an original format. The laws of copyright, passing off, and
confidence may all be relevant. Furthermore, there are a number
of practical steps which can be taken in order to improve one's
chances of success should litigation be necessary.
Jonathan
Coad
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