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Can a TV show format acquire copyright protection?

By Patrick Mitchell and Will Thorman


Many years ago the Courts determined that there was no copyright in the format for the “Opportunity Knocks” game show (see Green v New Zealand Broadcasting Corporation [1989] 2 All ER 1056) and since then several other claims to copyright in TV formats have failed when considered under English law.

However, in its judgment (available here), the English High Court held that it was possible that a game show format could acquire copyright protection as an original ‘dramatic work’.

Facts
Banner Universal Motion Pictures (BUMP) was formed by a Danish citizen named Mr. Banner who had devised and documented a TV game show:

“MINUTE WINNER
Mini-format Game show
Daily or weekly show.
Or short one minute between main programs.
Morning, Evening or Afternoon program.
One minute, or 30 minutes with several winnings”

This format was recorded in a document which described a show which is filmed either in a studio or in a variety of locations, featuring a single game played for one minute against the clock by a member of the public who has been selected randomly and without warning, and who was given “one minute to win” a prize provided by sponsors or advertisers.

BUMP claimed that Mr Banner disclosed the idea for Minute Winner during a meeting with Friday TV, who then used the information to develop a TV game show format, known as “Minute to Win It”, which was subsequently licensed, produced and broadcast all around the world. Mr Banner had also sent the Minute Winner format document as an attachment to an unsolicited email to the Friday TV representatives following that meeting. BUMP claimed that it was the owner of copyright in the format document and that the creation and broadcast of Minute to Win It constituted copyright infringement.

Copyright in an original ‘dramatic work’

Under the UK’s Copyright Designs and Patent Act 1998 (CDPA) one of the requirements for copyright protection is originality. The test for originality, as applied by Mr Justice Snowden here, was that the work (taken as a whole) must be an expression of the author’s own intellectual creation, although  not every constituent aspect of a work must be original.

The expression “dramatic work” is not defined in the CDPA (save that it is expressed to include a work of dance or mime). However, Mr Justice Snowden recalled that  the courts have held that the expression should be given its natural and ordinary meaning and that a dramatic work had previously been described as being “a work of action, with or without words or music, which is capable of being performed before an audience.”

Therefore, Mr Justice Snowden explained that each recorded episode of a television game show or quiz show would be likely itself to qualify for copyright protection as a dramatic work, so that copyright would be infringed if someone else staged a re-enactment of the same episode. However, since Minute Winner was never actually produced the question here was whether the format of a TV game show or quiz show is separately capable of being protected by the law of copyright.

Note that BUMP did not claim that the document was a ‘literary work’, since under the CDPA a work cannot be both a literary work and a dramatic work.

Decision

Mr Banner’s case was dismissed by summary judgment on the grounds that there was no realistic prospect of BUMP persuading a court that the contents of the Minute Winner document qualified for copyright protection.

However, the Court held that it was possible that a game show format could acquire copyright protection as a ‘dramatic work’, even though a genuine game or quiz show will contain “elements of spontaneity and events and events that change from episode to episode.”

That said, Mr Justice Snowden made it clear 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.”

In this instance, Mr Justice Snowden said the contents of the Minute Winner document were “very unclear” and “lacking in specifics” and the features were “common place and indistinguishable from the features of many other game show features.”

The Minute Winner Format

Mr Justice Snowden made the following observations about the features recorded in the Minute Winner document:

  • Neither the title itself nor the phrase “one minute to win” are “clear or distinctive” – the performance of a task against the clock to win a game or a prize is a common feature of most game shows.
  • The words “one minute to win” are not identified in the document as a catchphrase that is required to be repeated in the program, or how that should occur.
  • The fact that the show would give members of the public the chance to win something on television, and that it would record their reactions whilst doing so is entirely non-specific and “entirely banal”.
  • The document does not describe where the action is to take place.
  • The document does not contain any specification of who the contestants should be, or how they are to be identified or approached.
  • The document does not seek to prescribe the type of one-minute tasks that are required to be performed in any such a way that might be regarded as forming a recognisable or repeatable structure.
  • The length of the program and when it is to be aired is not adequately defined or described.
  • The generalised descriptions of why the program might be attractive to viewers, advertisers or producers would not form part of the format itself for copyright purposes.

It is also worth noting that Mr Justice Snowden concluded that there is no similarity between the idea outlined in the Minute Winner document and the Minute to Win It game shows, other than the fact that they both involve games played against the clock for one minute which is a commonplace idea. Therefore, even if the Minute Winner document had qualified for copyright protection there had been no infringement.

Breach of Confidence

BUMP had also made a claim for breach of confidence, on the basis that Mr Banner had disclosed confidential information to Friday TV. However, this claim also failed.

Mr Justice Snowden explained that no confidential information had been disclosed during the meeting, but he also asserted that Friday TV were not under an obligation not to disclose the Minute Winner document that Mr Banner had sent to them: Friday TV had refused to sign a non-disclosure/ confidentiality agreement and an alleged oral confidentiality agreement extended only to matters discussed at the meeting.

Comment

This decision and Mr Justice Snowden analysis of the recorded features of the Minute Winner document shows that anyone looking to rely on copyright to protect the format of their game or quiz show should produce detailed documents that specifically describe and detail elements of the format of that show. However, even with this in place – the hurdle of originality is a real one, causing issues for protection particularly in the context of general TV show concepts.

The case also again demonstrates the importance of putting in place effective non-disclosure agreements before disclosing any ideas for a new TV format, which could have high commercial value.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/11/can-a-tv-show-format-acquire-copyright-protection/