On any given day, a TV viewer in Serbia is likely to be able to find a show produced pursuant to a license from a foreign production company. “Survivor”, “Big Brother” (Veliki brat), “Who Wants to Be a Millionaire” (Želite li da postanete milioner) have become household names in Serbia, while other, slightly less well-known, titles include “Farmer Wants a Wife” (Domaćine, oženi se), “Got Talents” (Ja imam talenat), and “Piramida”.
A question rarely asked is: why do the local broadcasters bother to purchase licenses – i.e. spend many thousands of dollars or Euros on the royalties – instead of producing their own variations of the foreign TV “formats” and thus saving money? Would they infringe on anybody’s rights by taking the latter approach? To put the same question differently: does a TV format enjoy legal protection?
TV format is not a legal term. It is not defined in Serbian legislation or, to the best of our knowledge, in the legislation of any country or in international intellectual property agreements. A helpful definition of TV format can be found in the judgment by the German Federal Court from June 2003 (L’ecole des fans case): “the totality of all its characteristic features which are capable of acting as a general mould shaping each single episode and thus allowing the audience to recognize such episodes easily as parts of a series”.
Does a TV format enjoy copyright protection?
Since a TV format is not explicitly listed in any national law as a distinct category of copyright work, it will enjoy protection only if it satisfies conditions set under the legislation of a particular country for copyright work. In Serbia, the definition of copyright work is given in Article 2 of the Serbian Law on Copyright and Neighbouring Rights: “A work of authorship is an author’s original intellectual creation, expressed in a certain form, regardless of its artistic, scientific or other value, its purpose, size, contents and way of manifestation, as well as the permissibility of the public communication of its contents.”
Another relevant provision in the Serbian Copyright Act, Article 6(1), clarifies that copyright protection does not apply to “generic ideas, procedures and methods of operations or mathematical concepts as such, as well as concepts, principles and instructions included in a work of authorship.” The provision is of importance because it is often stated by the opponents of granting copyright protection to formats that they are comprised of no more than (non-protectable) ideas and concepts.
The question, then, is whether a TV format comes within the definition of original intellectual creations expressed in a certain form. No court in Serbia has had to answer that question in a controversy arising from the use of someone else’s TV format. In a number of other countries, courts have grappled with the issue.
Some jurisdictions refuse to recognize the status of a copyright work to TV formats altogether. In Germany, where copyright is deemed to exist if the work is an expression of the individuality of the creator, the Federal Supreme Court refused in 2003 to grant copyright protection to the French format, L’ecole des fans. The Court held that the TV format of an entertainment show with a studio audience – in that case singing performances by small children and invited guest stars – was in general not susceptible to copyright protection.
More frequently, courts are willing, under rather strict conditions, to grant copyright protection to TV formats, although protection may be limited.
In most common law countries, in order to gain copyright protection TV formats should come within one of the categories enumerated in the copyright statute as works of authorship. In practice, this leads the courts to resort to analogies in order to determine whether TV formats might be subsumed under “plays”, “scripted dramas”, or some other category named in the relevant statute.
Opportunity Knocks (1988) is a case on point. TV presenter Hughie Green, creator and host of a talent competition program shown in England, initiated an action for copyright infringement against the Broadcasting Corporation of New Zealand, which aired a similar TV show under the same title. Green argued that his show represented a literary and dramatic work. The Privy Council of the United Kingdom, in the capacity of a judicial body hearing appeals from Commonwealth countries, concluded that the “format” of the show lacked sufficient unity (i.e. a sufficient degree of certainty) to constitute a dramatic work. It was not a literary work either, because the scripts for the show did no more than express a generic idea or concept for a talent contest, which is not subject to copyright.
In later discussions of the case, it has been argued – by the authors of Copinger & Skone James on Copyright, one of the leading textbook authorities on English copyright law, among others – that it is possible for a format to be considered a dramatic work “if it contains a sufficient record of how the show is to be presented.” In other words, detailed written directions concerning the content of the format might ensure the status of a copyright work to the format.
In civil law countries and in the U.S., for a TV format to enjoy protection it needs to fit within the general definition of a copyright work in the copyright law, rather than belong to one of the categories from the exhaustive statutory list of copyright works.
The Court of Appeal of Paris, deciding in the case Divertissimo v. Sportissimo (1998), recognized the creative activity of the authors and granted copyright protection to the game show because it was based on a specific script “describing the atmosphere and philosophy of the game and its progress, the scoring of points, the content and wording of the questions, the nature of sporting events, thereby constituting an original assembly of elements.”
In the case of Castaway Television Productions Ltd and Planet 24 Productions Ltd v Endemol, the Dutch Supreme Court held in 2004 that the format of Survive, the Dutch version of Survivor, was a copyright work under the laws of Netherlands. The definition of a copyright work in the Dutch law is quite broad: “generally any creation in literary, scientific or artistic areas, whatever is the mode or form of its expression”. The Supreme Court noted that the elements that made the program were separately not original enough, but the way in which they were combined made Survive an original work. Also, the format’s “bible” (the document delineating elements of a series of episodes) was sufficiently detailed. The court, however, held that there were many differences between Big Brother and Survive, the two programs under review, and the fact that the idea of the programs was the same was not sufficient for the court to find an infringement.
One US case – CBS Broadcasting Inc v ABC Inc, from 2003 – had a similar outcome. The District Court for the Southern District of New York supported the concept of originality by a combination of otherwise non-protectable generic ideas. Survivor, therefore, was a copyright work. At the same time, the format I’m a celebrity get me out here, while sharing some generic ideas with Survivor (remote, inhospitable setting; real people playing themselves; tests imposed on the contestants; and, serial elimination), did not infringe, because the two programs were substantially different in the “look, tone and feel”, setting, characters, plot and music. Survivor was serious and dramatic while I’m a celebrity get me out of here was comedic. Contestants in Survivor were ordinary people unknown to the public, whereas the contestants in the other show were celebrities. Unlike in Survivor, there were no competing teams in I’m a celebrity get me out of here. The prize was one million dollars in Survivor, and the funny title of the “king of the jungle” in the other show. According to the U.S. court, copyright protection granted to a TV format is limited. The line which separates ideas/concepts (which are not protectable under the copyright) from its combination that is recognized as a copyright work is thin. As a result, in the jurisdictions agreeing with this reasoning, a particular TV show is to be almost completely copied in order for a court to establish infringement.
There is thus a lack of consensus with respect to protection of a TV format under the copyright regime. One common point seems to be the understanding that a TV format needs to be materialized in a script setting out rules as specifically as possible, in order to escape the objection of being no more than a generic idea. But even where a TV format can qualify as a copyright work, proving infringement in a particular case may be difficult,as evidenced by the Survive/Survivor cases in the Netherlands and in the U.S.
The above perhaps shows the possibilities of TV format copyright protection in Serbia, given the broad definition of a copyright work as “an author’s original intellectual creation, expressed in a certain form”.
Availability of protection under the doctrines of unfair competition and parasitic behaviour
Since the copyright protection of TV formats does not provide sufficient certainty to the creators who seek protection, it is worth considering whether the concept of unfair competition may be a satisfactory alternative.
Protection under the unfair competition rules does not require that the matter under protection is an original work of authorship. Unfair protection rules protect invested money and efforts put into the creation of a product or a service from free riding. In the French court case concerning the allegations of copying by the private TV channel TF1, the Court of Appeal in Versailles treated format rights under the rules of unfair competition. Antenne 2 broadcasted the reality program La Nuit des Heros; its presenter resigned and two months later started to present similar reality shows on the TF1. In September 1992, the court held (as described in a helpful article by Jean Castelain and Christine Caron) that TF1 unduly took advantage of the program broadcasted by the plaintiff, Antenne 2: “[I]t is not acceptable to plagiarize the show of a competitor, by adopting, beyond the theme, composition, editing, and duration, the structure of sequences and the style of presentation.” The court found the confusion between the shows to be “assured.”
As the judgment by the Versailles Court of Appeal illustrates, unfair competition doctrine presupposes the existence of a competitive relationship between the owner of the TV format and the alleged infringer, and it requires a likelihood of confusion.
Serbian Law on Trade (2010) defines in Article 50 unfair market competition as an “activity of a trader directed against another trader, i.e. competitor, which infringes upon the code of business ethics and good business practices and causes or could cause damage to such other trader, i.e. competitor.” The illustrative list of activities that are considered as acts of unfair competition, in the same Article, includes the sale of goods with signs, data or shapes which reasonably cause confusion among consumers with respect to the origin, the quality and other characteristics of the goods.
French law also knows of the doctrine of parasitic behaviour; the doctrine prohibits appropriation of another’s distinctive achievement. Article 1382 of Code Civil prescribes: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred to compensate.” There is no requirement of a competitive relationship or of the likelihood of confusion.
While Serbian courts have not formulated a distinct doctrine of parasitic behaviour, the Serbian law imposes, just like the French law, a general ban on causing damage to another (Article 154 of the Serbian Law on Obligations (1978)). This is yet another legal avenue that could be pursued against alleged TV format infringers. However, it still remains to be seen how Serbian courts would react to such an argument, or indeed any other potential argument described in this post as a means of protecting the rights in a TV format.
