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TV Formats: Still the Weakest Link? Jerry Dohnal examines the emerging phenomenon of television programming with apparently similar formats. Poes a breach of copyright exist? ___ ' ___ ___ ith the advent of reality-based local production of television programs Lunch Box”, where a 5-year-old girl television programming, based on a format or concept for a discusses the contents of her lunch box television formats, once television program that may have been with her 3 year-old pal, Charlie).2 Wregarded by entertainment lawyers,produced elsewhere, and which is whether rightly or wrongly, with some reversioned using local talent. A RECENT TREND? degree of cynicism, are now enjoying Distraction Formats, a UK company, newfound popularity and success. Some offers formats across a variety of genres Whilst format licensing may seem like a of Australia’s biggest rating programs for including game shows (e.g. “Strip”, relatively new trend, Australian 2001 are based on television formats, which as the name suggests involves production companies such as Grucdy including “Big Brother”, “Who Wants To contestants who are willing to strip), and Becker have long been licensing Be a Millionaire”, “Survivor”, “The comedy/sitcom (e.g. “Girl Talk”, about drama and gameshow formats Weakest Link” and “The Mole”. These “4 thirtysomething females who know internationally. Grundy has been formats are appearing in local versions they can count on each other -come hell producing overseas versions of its local the world over and are performing or high water”), drama (“Virginie”, a Australian hits since the early 80s. In surprisingly well. daily soap which touches on different 1982 Grundy produced a US version of “Popstars”, the cult program produced social subjects such as racism, violence, ‘Sale of the Century’ for NBC, becoming by Australian company Screentime and family difficulties etc), entertainment the first Australian producer to produce' based on a New Zealand format acquired (“The Big Bluff’, where celebrity guests a series for a U.S. Network. Other by Screentime, has now been produced attempt to drive ordinary people crazy Grundy program formats that have been under licence in the US, Germany, Italy, with their obnoxious behaviour), successfully produced overseas, in a Canada, Australia and New Zealand, and magazine (“The Feeling is Mutual”, variety of countries from Germany to has been sold to Brazil, Argentina, which “takes viewers on a 90 minute Paraguay, include “The Restless Years”, Portugal, Denmark, Norway and adventure into [a particular] celebrity’s “Sons and Daughters”, “Prisoner”, Belgium. Screentime is in the process of passion for the arts”) and kids (“The “Mother and Son”, “Family Feud” and developing other formats for overseas exploitation, including “Strip Search”, INSIDE THIS ISSUE and has itself acquired rights to a format called “Crossfire”.1 TV Formats: Still the Weakest Link? WHAT IS FORMAT Fair or Foul Dealing: LICENSING? The Panel and Copyright M Commerce and Wireless Advertising ■ Format licensing, or “re-versioning” as Legal Challenges for Carriers it is also known, differs to program ■ Mobile Number Portability * licensing in that it does not involve the acquisition of a finished program that has Will You Be Getting Around? been produced elsewhere, and which may Dispute Resolution Under Part XIC of the require dubbing or captioning in another Tirade Practices Act - The Problems and the Cure language. Format licensing involves Cancelled Datacasting Transmission Licences Auction - Will the Red Faces Recover? Teen Rebel Napster Faces the Music - Will it Be a Swansong? , .. CONTENTS TV Formats: Still the Weakest Link? Jerry Dohnal examines the emerging phenomenon of television programming with apparently similar formats. Does a breach of copyright exist? Fair or Foul Dealing: The Panel and Copyright Tim Golder and Teresa Ward examine the Federal Court decision dealing with allegations of copyright infringement by Channel Nine against Channel Ten over humorous rebroadcasts by The Panel. M-Commerce and Wireless Advertising - Legal Challenges for Carriers Buying a coke with your mobile phone is just the beginning for mobile commerce. Niranjan Arasaratnam and Joanna Davidson discard the hype to assess this new service. Mobile Number Portibility - Will You Be Getting Around? Brenton Yates explores the regulation surrounding, and expected implications of, the recent introduction of mobile number portability. Dispute Resolution Under Part XIC of the Triade Practices Act - The Problems and the Cure Michael Bray analyses these controversial provisions and gets to the bottom of current issues being confronted by industry participants, the ACCC and the Federal Government. Cancelled Datacasting Transmission Licences Auction - Will the Red Faces Recover? The embarrassing cancellation of the datacasting transmission licence auction in May could cause ongoing damage to government revenue from the communications sector, Robert Gibson explains. Teen Rebel Napster Faces the Music - Will it Be a Swansong? Mia Garlick reviews the practical impact for Napster of the Appeal Court’s decision. “Police Rescue". The German version of New Zealand produced and broadcast with detail or pattern or incidents of “The Restless Years” has, in fact, a television talent show with the same sufficiendy substantial to attract copyright become Germany’s most successful title. Apart from the title, the New in the whole”4, i.e. an idea will be drama serial since its launch on Zealand show included assorted features afforded copyright protection if it is commercial channel RTL in 1992.3 of the UK show, including the use of expressed in sufficient detail so as to various catchphrases, the use of sponsors constitute a work protected by copyright. GREEN V BROADCASTING to introduce contestants and the use of a This suggests that if the concept for a CORPORATION OF NEW “clapometer”. Green brought an action television program is sufficiently ZEALAND against the Corporation for passing off elaborated in writing it will be afforded and infringement of copyright in the copyright protection. In terms of intellectual property law, scripts and dramatic format for the Even so, whether or not a copyright work protecting a television format has always program. been a somewhat shaky proposition. A is infringed will depend upon the nature format is, after all, basically the idea for The New Zealand Court of Appeal, and quality of what is taken and whether a television program. It is trite law to say subsequently affirmed by the Privy or not it constitutes a substantial part of that copyright subsists not in the idea Council, held that the scripts described that work. For example, the use of itself, but in the form of the expression. by Green were no more than the skeleton elements from a television program will So much was decided by the Privy outline or framework of the manner in only constitute infringement of copyright Council in Green v Broadcasting which the television show would be if a court can find that the use of those Corporation of New Zealand, the leading conducted. Somers J said that the scripts elements constitutes a reproduction of a case dealing with infringement of a did no more than express the general idea substantial part of the work in which television format. or concept for the show, and as such did copyright is claimed. The court will need not attract copyright protection. He cited to determine the extent to which the Green was the author, producer and Tate v Thomas [1921] 1 Ch 503 in which features which have been copied are more compere of a television talent show, the author of a synopsis of a play was than mere ideas or concepts. What “Opportunity Knocks”, produced and declined copyright protection. He did matters is the degree of particularity or broadcast in the United Kingdom from note, however, that it was possible for the generality of the idea which is taken. “If the early 1960s until 1978. Between 1975 abstraction implicit in a general idea or the general idea which underlies or forms and 1978 the Broadcasting Corporation concept to be “delineated by or attended the basis of the work has alone been taken Page 2 Communications Law Bulletin, Vol 20 No 3 2001 program, original music, graphics, titles, that votes were rigged on “Survivor”, to there will be no infringement. If more international rating figures for use by differentiate “Boot Camp” as a true reality than that it will be a question of fact and sales executives. A format licensor is program. In a ruling released 16 June degree whether there is an basically offering licensees “all the inside* 2001, the Judge i ndicated that even if the infringement. "s Whether or not a knowledge that makes the format work .* outcome of “Survivor” is proven to have substantial part has been copied will This represents a significant saving to the been manipulated, CBS is still entitled depend more on the quality of what has licensee on development and production to protect its show against copyright been copied rather than the quantity. costs. Even though it may not be possible infringement, which the judge identified to protect the basic program idea, each “It is not now suggested that there as the core issue of the case.® individual element of the package may copyright in the tide nor could it be Interestingly, Fox had previously filed a be capable of separate intellectual suggested that the idea of a talent lawsuit against CBS in relation to the property protection, whether by way of quest could obtain a monopoly. I format for a reality program entitled copyright, trade mark, confidentiality or think the Judge was right to hold that “Race Around the World”, which is contract. the use of sponsors in the way they currently in production, alleging that were used by Mr Green was an idea CBS stole the format from a Fox Of course, where a format is yet to be not capable itself of being protected employee who created it in 1998.7 produced, it will usually consist of only a by the Copyright Act.

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