United
Kingdom
ENDEMOL WINS COPYRIGHT PROTECTION FOR BIG BROTHER IN BRAZIL
The international trade in format rights is now worth
$1billion annually, but formats remain a species of intellectual
property which has scarcely hit the radar of most jurisdictions
around the world. The Dutch Court of Appeal recently found a television
format to be a copyright work, although a claim of breach of copyright
based on that format failed. However, a successful claim for breach
of copyright has now been made in Brazil based on the Big Brother
format.
Endemol (which owns the format) entered into negotiations with
TV SBT of Brazil in the course of which Endemol provided extensive
information on the Big Brother format. TV SBT chose not to acquire
a license for the format and produced "Casa Dos Artistas"
(the Artist's House), which the Brazilian Court described as a
"rude copy". Endemol and its Brazilian licensee for
the Big Brother format (TV Globo) sued TV SBT seeking an injunction
and damages.
The defendants claimed
that a reality show is no more than an idea, citing the lack of
scripts. They claimed that the format bible was "in reality
a simple manual that describes methods and procedures...; the
idea of locking up people inside places and observing them is
not new; ... the work "1984" by George Orwell deals
with this theme...".
However, the Court
heard expert academic opinion that; "[a] Television programme
format, in the sense employed by the television business media,
is a much wider concept that does not only include the central
idea of the programme but also encompasses an extensive group
of technical, artistic, economical, business...information. The
format of television programmes is not just the idea of the programme,
it is the idea and much more."
The Court found that
the Big Brother format enjoyed copyright protection under the
Brazilian law of copyright, and noted that Brazil was a signatory
to the Berne Convention. It observed that the format "is
not limited to spying [on] people locked up in a house for a certain
period of time;...it contemplates a programme with a beginning,
middle and end, with meticulous description, not only of the atmosphere
in which the people will live for a certain period of time but
also the places where cameras are positioned. The format consists
of details such as the use of microphones tied to the participants'
bodies, linked 24 hours a day, music styles, the form through
which the participants will have contact with the external world,
activities, among others. The images and audio situations captured
for hundreds of thousands of people through the daily inserts
in the programming of the television services and through the
Internet with the consequent commercial exploitation is also a
unique characteristic of the format."
The judge did not spare
the defendants, stating that; "the whopping.similarity between
both programmes.does not stem from chance, but from a badly disguised
and rude copy of the format of the programme Big Brother".
The Court made awards of damages to Endemol of approximately £400,000,
and to their Brazilian licensees of over £1million.
Television formats
have now been traded round the world for over 50 years. The judgment
of the privy council in Green which 15 years ago rejected a claim
in copyright over the "Opportunity Knocks" format does
not reflect either modern industry practice or the view taken
by Courts where this issue has been tested in the 21st century.
If the legislature does not step in, format protection in this
country will surely come when the right set of facts is presented
to the Courts.
Jonathan Coad
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