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. The same relatively short document, a so-called position applies in my view to the FORMATS ADD VALUE “paper format” because it only exists on clapometer... These features indicate paper, setting out the basic concept or idea the difficulties of Mr Green s case. If Green confirms that there is no for a particular program. This is then Not surprisingly he feels his ideas copyright in a television formal per se, shopped to potential production have been appropriated. But that 1 and that the idea fora television program companies and broadcasters. Protecting am afraid is all that has happened. is not really capable of copyright a paper format presents a far greater Whether taken item by item or as a prolection, why are formats such hot problem for producers than a television whole I am of the opinion that the property, being bought and sold program format, because it will be more scripts... did not themselves do more worldwide for large sums of money? To difficult, in instances of infringement, for than express a general idea or some extent it’s because companies like a court to draw a conclusion that one concept for a talent quest and hence to be seen to be doing the right thing, program is a copy of another. were not the subject of copyright. ” and want to avoid expensive lawsuits, but CONCEPT TELEVISION perhaps more so because of the value-add PRODUCTIONS PTY LIMITED “BOOT CAMP” that a format licensor has to offer. AND CARTOON CONCEPTS A format does not merely consist of the PTY LIMITED V THE Notwithstanding the difficulties in idea for a television program. After all, AUSTRALIAN pursuing an action for infringement of a ideas for television programs are perhaps BROADCASTING television format, litigation remains a real even more prolific than unfinished novels CORPORATION option for an aggrieved party. Much will and film scripts. A television format is a depend on the circumstances of the package of materials and information Issues relating to the protection of a paper particular case. A United States judge which a licensee can use to create a format were considered by the Federal recently refused to dismiss a copyright successful program. Action Time Court of Australia in Concept Television infringement lawsuit brought by CBS, the International, a UK company that has Productions Pty Limited and Cartoon US producer of “Surrivor”, against rival licensing and co-production Concepts Pty Limited v the Australian broadcaster, the Fox Broadcasting arrangements in over 30 countries, has Broadcasting Corporation (1988). Corporation, and production company pioneered a 'one stop' service to its clients Concept Television alleged that the ABC LMNO Distribution, the producer of which can include comprehensive had stolen the format for a television quiz “Boot Camp”. “Boot Camp” is a program production support.Jncluding-musitL -show'-entittcd-'iT;he-Oz-Uame”“froin a“ ~wdnch7iike-“SurtTYOT”^involves Itf computer software and producers to format developed by Concept. Concept contestants competing against each other consult on productions on-site.8 sought interlocutory relief to prevent the for a cash prize who are required to ABC from broadcasting the program on In the case of programs which have been the night of its premier. Interestingly, the complete challenges and vote members successfully produced elsewhere, such out at the end of each episode. CBS three causes of action upon which packages, known in the TV industry as Concept Television sought to rely, being alleges “Boot Camp” copied significant television program formats, can include breach of contract, breach of confidence copyright elements from “Survivor”. a format guide and production bible, and contravention of section 52 of the scripts, original episodes of the program LMNO Distribution apparently pitched Trade Practices Act 1974, did not include as produced in other countries, questions the idea for “Boot Camp” to CBS as a a claim in copyright, presumably because program which CBS could use to (in the case of game show's), blue prints of the difficulty in proving that a capitalise on the success of “Survivor”. of sets, know-how needed to produce the substantial part of the paper format had Fox lawyers used allegations by program, unique software which may been reproduced. “Survivor” contestant Stacey Stillman, have been developed specifically for the

Page 3 Communication* Law Bulletin, Vol 20 No 3 2001 The ABC and Concept had originally a third party to exactly copy that format. formats as unique, intellectual properties, intended to jointly produce a quiz show Be aware, however, that you can only is backed by a range of format creators based on a box-board game developed by protect your expression of the idea, and and providers such as Pearson, King Cartoon Concepts. The program was not the underlying idea itself. Although World, Action Time, Endemol, Talkback subsequently cancelled by the ABC, not strictly necessary, you should also and MTV Production. David Lyle, which then commissioned another mark all your documents with a copyright Pearson Television’s head of light producer, Taffner Ramsay Productions, to notice, and include the names and contact entertainment and a principal FRAPA produce “The Oz Game” based on a details for the authors of the document. organiser, believes that the escalating concept independently developed by global trade in formats, plus the rise of Consider all forms of IP protection: Taffner. Finding for the ABC, Gummow the Internet and the “tremendous Pursue separate intellectual property J held that there was insufficient challenges” that that has posed for protection for those elements of your coincidence between the information intellectual copyright protection, have format which qualify for that protection, claimed as confidential by Concept hastened the need for an organisation like e.g. trade mark protection for titles, Television and the format eventually used FRAPA. slogans and catchphrases. Consider for the Oz Game. Gummow J indicated registering or depositing your format with A UK company called tvformats.com, a that case law relating to breach of a literaiy registry, or with the Format division of Group Media Ltd., is also confidence requires an applicant to Recognition and Protection Society dedicated to the recognition and clearly identify the information which is (FRAPA) which operates a free protection of format rights. The members said to constitute the subject matter of the International Television Format Registry, of Group Media Limited have particular confidence so that it may then be first launched in February 2001 (http:// experience in the international format measured against the alleged breach or www.frapa.org/). The idea of format business, and the development and threatened breach. registration is to provide evidence of the production of television formats. There In relation to the issue of contract, existence of a format at a certain date, have also been calls for stronger wherein Concept claimed that there was and to whom it belongs. legislation in Europe to protect the an implied negative covenant on the ABC copyright of TV formats. These and other Confidentiality: Program ideas and not to produce a TV program as the same initiatives indicate that format rights, formats should only ever be disclosed to format as that proposed by Concept, once regarded in the entertainment potential licensees or partners in the Gummow J was of the view that the industry with a certain level of contempt stristest confidence, You need a good pro parties were yet to enter into a contract, and cynicism, essentially “the weakest forma confidentiality deed that protects and that even if they had, and even if there link", may prove to be a much stronger you from a wide range of unauthorised had been an express term of the type link than anyone ever imagined. use of your idea. Your documents should claimed by Concept, the program be marked "confidential”, and any 1 http.//www.screentime.tv/forrnats/fonTiats.htrnl produced by the ABC did not bear such a presentations of your idea should be 2 http://www.ctistract.com/ relationship to the format offered by clearly identified by you as being made 3http: //www. aftrs .edu au/Reports/ Concept as to infringe the implied term “in confidence”. industry_ovewiew.htmt,http://www.srntYcom.au/ on which Concept sought to rely. In news/0003/27/features/features20.html essence, the Court used the same sort of Contract protection: Ensure that you 4 Green v Broadcasting Corporation of New Zealand [1983] 2 NZLR 490, at 497. reasoning that it would have applied to have the protection of a contract before 5 Ibid at 498. an action in copyright, i.e. the program developing or producing your idea with 6 http://tv.yahoo.com/tvnews produced by the ABC did not constitute a third party. The contract should include 7 http://www.encoremagazfne.com.au restrictions on the party’s ability to a substantial infringement of Concept’s 8 http://www.netsitepro.com/actiontime/ independently produce a television format. 9 http://www.tvformats.com program that is based on or has a similar STRATEGIES FOR theme to the format in question. In The views expressed in this article are PROTECTING A FORMAT addition to covering ownership of the those of the author and not necessarily intellectual property rights in the those of the firm or its clients. Both Green and Concept Television program, the contract should also cover provide useful clues as to the strategies ownership of the format, and any Jerry Dohnal is a lawyer with the Sydney that can be employed to protect a enhancements to the format (where joint office of Gilbert & Tobin. television format or individual). Express your format: If your television format is yet to be produced, tiy to express ...... CONCLUSION the format in as much detail as possible Producers are increasingly becoming to attract copyright protection. Until an aware of the value of their television idea is reduced to paper and elaborated formats, and the need to protect those in some way, it is very difficult to protect. formats from misuse. FRAPA, which The more detail in which your format is aims to promote to producers, expressed, the more difficult it will be for broadcasters and the law, the concept of

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