Format copying (or in the industry’s preferred term: copycatting) has emerged as a by-product of the growing international trade in television formats. However there are no specific laws anywhere in the world which govern 'formats' as intellectual property rights.
Green v Broadcasting Corporation of New Zealand
In the landmark case of Green v NZ Broadcasting Corporation, the British television author and presenter Hughie Green objected to the unauthorised adaptation of his talent show Opportunity Knocks under the same title by the Broadcasting Corporation of New Zealand from 1975 to 1978. Green claimed copyrights to the ‘script and dramatic format’ of the show, broadcast in England between 1956 and 1978. As ‘format’, ‘structure’ or ‘package’ Green cited the title, the use of certain catch phrases, the use of a ‘clapometer’ to measure audience reaction and the use of sponsors to introduce competitors. However, the Court of Appeal of New Zealand ([1988] 2 NZLR 490) ruled that the ever changing format elements lacked the certainty and unity of a dramatic work. The case was appealed to the Privy Council in the UK which held that a dramatic work must have sufficient unity to be capable of performance. On the facts, Green was unable to show that the elements of his format were more than accessories to different dramatic performances ([1989] 2 All ER 1046).
Challenges to Legal Protection of Format Rights
Following legal decisions that permit plagiarism of programme ideas in principle, one should have expected a decrease in the market for international television formats. Why pay for a television format if you can re-create it for free? “If no such rights exist, then the commercial rate for the format, at least from a legal point of view, is zero” (McInerney and Rose, 1999).
The evidence however points to the opposite. Celador’s show “Who Wants To Be A Millionaire?” first shown on Britain’s ITV has been licensed for seven figure sums to U.S. network ABC and German commercial broadcaster RTL. Dutch firm Endemol’s hit Big Brother in which volunteers are locked under constant surveillance into a ‘container home’ has been sold to many countries, including Britain’s Channel 4, Germany’s RTL2 and CBS. International media trade fairs have established elaborate protocols of format trading but the legal issues remain hotly contested.
Historical Evidence
As part of this project, the lead researcher undertook a collection, indexing and systematic analysis of all reported TV format disputes over the last 20 years (since Green v Broadcasting Corporation of New Zealand). This created a bespoke format rights disputes database, the main source for which was the television industry trade magazine ‘Broadcast’ published weekly. 41 unique reports of format rights disputes were identified. Secondly, key phrases such as ‘television format’, ‘television copying’, ‘television copyright’, and ‘rights dispute’ were entered into search engines such Google and proprietary databases, such as Westlaw and Heinonline. This yielded a further 18 unique format rights dispute reports. Hence a total of 59 unique dispute reports were indexed and the database was then subjected to a content analysis to create a taxonomy of disputes.
Please click on the links below to see an excerpt of the database. The complete database is available on request from the researchers.