TV programmes and format
Copyright protection in Italy
08 April 2019
The format of a show has been protected in Italy as an author's work since the Italian Collecting Society (SIAE) started a special register in 1994. The registration, however, is not a formal requirement to obtain copyright protection, but allows to take advantage of the authorship presumption as to the rightholder and establishes priority in case of future dispute (in either case, both the authorship presumption and the priority, if questioned in court, should be proven by the claimant).
The copyright protection of the format is independent and additional to other potentially involved and independently protected matters (movie, screenplay, title, characters, etc.).
According to Italian judicial precedents, copyright protection on format will not exist unless (i) there are a number of clearly identified elements which, taken together, distinguish the format from others of a similar type; (ii) those distinguishing elements are connected with each other in a coherent framework that can be repeatedly applied in an original and not banal structure; and (iii) this structure should allow the creation of "multiple" versions of the programme based on the same format ("multipli" in Italian). This means that the owner should document as much detailed information as possible about the format to demonstrate that it has a detailed and exhaustive framework.
In the absence of a legal definition of "format" as copyright work, Italian courts have always referred to the notion expressed by SIAE for its special register (set out in SIAE's bulletin 66/1994): "a work having original structure which explains the functioning of a show and its complete articulation of scenes and topic sequences, ready to be represented in a radio/television programme or theatrical show, immediately or through an arrangement for the creation of series. In order to be protected, the work shall present the following characterising elements: title, plot and concept, scenes and main characters" .
A high-level review of judicial precedent decisions on the matter shows that format protection has been invoked in a number of different situations; given that the fulfilment of requirements for the copyright protection is not easy to prove, often the protection has been denied (sometimes, however, courts have granted the alternative claim of unfair competition). In the majority of TV programmes (talk-shows, reality shows, quiz shows, talent shows, etc.) the subject-matter is straightforward. However, in other cases the existence of a protectable "format" can be denied if the peculiarity of the audio-visual programme (e.g. newscasts or award ceremonies) is based on common (and therefore, non-original) elements. At the same time, the broad notion of "format" also enabled the coverage of shows that do not air on television, such as film festivals or theatrical events.
The format of a show is protected under Italian law as a copyrightable work; therefore, the ordinary requirement of creativity applies. On this issue, the Italian Supreme Court has affirmed in several occasions that for format, too, there is no threshold of artistic value to ascertain creativity; it is sufficient that the ideas underpinning the format, even if simple, are characterised individually as a result of the author's creative effort (Italian Court of Cassation, decision no. 3817, 17 February 2010; Italian Court of Cassation, decision no. 21172, 13 October 2011).
In line with general principles of copyright law, it has been also affirmed that creativity in the format does not require absolute originality (Court of Rome, 23 September 2011). On the other hand, a format which consists only of banal and common elements (such as the structure of an award ceremony) does not attract copyright protection. Accordingly, the Court of Milan, with a decision on 17 June 2016, denied format protection for the programme entitled "Oscar of Football", because the programme relied on a banal structure of a ceremony and replicated – without particular creative efforts – similar and common events for films and TV series.
The form… in format
Format protection is subject also to the other main principle of general copyright law, i.e. the idea/form dichotomy. Therefore, the copyright protects only the formal expression of a creative effort and not the underlying idea, which always remains in the public domain.
On the basis of this principle, Italian Courts have sometimes denied protection to formats which were at their very initial and raw phase, requiring additional creative efforts to be completed (although maybe already filed with the SIAE special register). A format cannot be protected if it consists only of a title and a very generic idea of the location, without specific mention of the other characterising elements listed in the notion, i.e. plot, concept, scenes and main characters (see Court of Appeal of Rome, 2 March 2009; Court of Milan, 16 February 2011). As affirmed recently by the Italian Supreme Court: "if these elements lack or are not elaborated in a sufficiently clear and determined fashion, it is not possible to invoke the copyright protection, because we are dealing with an idea so vague and generic to be compared to an empty shell, without any market utility and missing of the requirements of creativity and individuality necessary to implement the notion itself of a work of author" (Italian Court of Cassation, decision no. 18633, 27 July 2017).
- Register your format… The filing of the format in the special register held by SIAE is a very valuable method to take advantage of the authorship presumption as to the right holder and to establish priority in case of future disputes (both of which, if questioned in court, should be proven by the claimant).
- …diligently… Although useful, the mere act of filing should not be overestimated; a rough and incomplete registration runs the risk of being ineffective and counterproductive in court. All and any characterising elements of the format should be carefully drafted: title, plot and concept, scenes and main characters.
- Focus on creativity and … be as detailed as possible! The scope of protection of the format (if any) varies on the creative elements which it contains. Focus on the original aspects of your format, and avoid referencing common and banal elements which are typical of the type of show you are writing, which are therefore likely to be in the public domain. In any event, rough and undetailed ideas are not protectable under Italian copyright law.