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This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

 Briefing 
Author
Nina O'Sullivan & Matthew Green
Date
14 November 2017

Inside IP: Protection of TV formats as copyright works

Format right disputes rarely end up in court but a recent decision of the High Court has provided some useful clarification that TV formats may be protected by copyright as dramatic works if particular criteria are met.

In particular, the decision highlights the level of detail required to demonstrate the features of the show which distinguish it from similar shows, and how those distinguishing features connect with each other in a coherent framework to enable the show to be reproduced in recognisable form. This might include detailed format bibles characterising a show's distinct features, from set designs and audience interaction, to catchphrases and music.

In this case, the idea of playing games against the clock for one minute was not sufficiently set out in a specific and coherent framework, and the show in question contained features much like other game shows.

Background

In 2005, Mr Banner, a Danish citizen, devised a TV game show called 'Minute Winner', where contestants were given one minute to play a game in order to win a prize. Having met with a Swedish TV company to discuss his idea, he followed up with an email providing further detail. The title page read:

"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."

He subsequently forwarded brief details including the shooting locations and prizes to be won, but no non-disclosure agreements were signed prior to the meeting.

Around four years later, after the Swedish company was brought into the NBC group, a show called Minute to Win It was broadcast, initially in the USA and then internationally. Mr Banner brought proceedings in Sweden for misuse of trade secrets but the Swedish court rejected his complaint. A company owned by Mr Banner subsequently began UK proceedings for breach of confidence, copyright infringement and passing off. The UK court rejected all of the complaints, and also decided that the claim for breach of confidence was an abuse of process, given the proceedings in Sweden. 

Copyright protection

The judge decided Mr Banner's document was not protected by copyright, because it was very unclear and lacking in specificity. It failed to detail a coherent framework or structure, which could allow the show to be adequately reproduced, with its features being, "in truth commonplace and indistinguishable from the features of many other game shows". However, he did accept that, conceptually, the format of a TV game or quiz show could be protected as a copyright work as a dramatic work provided the necessary criteria were met, namely, as a minimum, the following:

  1. there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and
  2. 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 case, Minute Wonder was unable to meet these criteria. Further, even if copyright had protected the show, Minute to Win It would not infringe that copyright: there could be no protection simply for the idea of playing games against the clock for a minute.

The decision is a useful reminder to those devising TV formats of the importance of robust TV format bibles detailing sufficient information as to articulate the show's key features, as well as the importance of non-disclosure agreements prior to disclosing the show's distinctive characteristics.