TV Format Protection
A UK Update
14 December 2018
Protecting TV formats has been notoriously difficult both in the UK and worldwide. A recent decision by the High Court of England and Wales sheds new light on how TV formats may be protected under UK copyright law.
The global television formats business is a multi billion pound industry based on lucrative licensing deals in multiple territories. However, legal protection varies significantly between jurisdictions. In the UK, claims have been made that TV formats should be protected as "dramatic works" under the Copyright, Designs and Patents Act 1988. In the CDPA, a 'dramatic work' is a work of action, with or without words or music, which is capable of being performed before an audience. In Green v Broadcasting Corporation of New Zealand  UKPC 26, a claim that the format of the TV talent show 'Opportunity Knocks' could be protected as a dramatic work failed. It was held that there was not sufficient certainty or unity in the show's format to make it capable of being performed. This has left TV format creators with little guidance on how their formats could be capable of protection in copyright. However, the recent case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor  EWHC 2600 (Ch) has shed some new light on the potential for TV formats to be protected as dramatic works. The new developments, while as of yet untested in English courts, should come as positive news to TV format creators who have previously struggled to obtain protection for their creations.
Changes to the protection TV formats in the UK
Recently the High Court of England and Wales ruled in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor that a particular TV format document did not qualify for copyright protection as a dramatic work as its contents were unclear and lacking in specifics. However the judge provided helpful guidance on the way TV formats should be recorded or expressed in order for there to be a prospect of success for it to be protectable as a dramatic work.
The Claimant ("Banner") alleged that, after pitching the concept of its TV game show for 'Minute Winner' to one of the Defendants (the Swedish TV production company, Friday TV) in 2005, Friday TV went on to copy the format, by developing a similar game show format called 'Minute to Win It'. 'Minute to Win It' first aired in the US in 2010 and was subsequently aired in the UK on ITV2 in 2011. It has since been sold in over 70 countries worldwide.
The concept for the Minute Winner game show involved members of the public being given exactly one minute to try and win a prize. The show format was set out in a short document ('the Minute Winner Document') which described such features of the show as a brief synopsis; where the program was to be filmed; and the prizes that could be won. Banner claimed that copyright subsisted in the Minute Winner Document as a dramatic work and that the Defendants had infringed this copyright by producing 'Minute to Win It'. Banner also was unsuccessful in bringing a claim for Breach of Confidence and Passing Off.
Snowden J held that the Minute Winner format could not be afforded copyright protection. He explained that copyright protection will not subsist unless, as a minimum; (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. Snowden J also acknowledged the possibility for TV formats (even if not fully developed) to be protected by the law of confidential information, while noting that information which is too vague, insufficiently developed and of a very general nature is unlikely to qualify for protection under the common law of confidential information.
In practice this means that production companies should document as much information as possible about the format of their show in order to demonstrate that it has a coherent framework. The bible of documents should contain comprehensive details of all aspects of the show's concept including: any scripts, catch-phrases, set designs, floor plans, costumes, logos, theme tunes and other relevant aspects relating to the "look and feel" of the show. Although it should be noted that whilst Snowden J has set out the minimum requirements, we would probably still need further judicial analysis in order to properly formulate a test to determine when TV formats qualify for protection. It will now be interesting to see if the courts of other jurisdictions adopt a similar approach.
Key Take-Away Points
- TV format creators have struggled to find appropriate protection for their works in IP law both in the UK and worldwide
- The new Banner case sheds new light on whether a TV format can be protected under copyright law in the UK
- It is important for TV format creators to document as much information as possible in respect of the format of their show to demonstrate that the work should be protected under copyright law