View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Fordham University School of Law Fordham Intellectual Property, Media and Entertainment Law Journal Volume 16 Volume XVI Number 2 Volume XVI Book 2 Article 7 2005 Television Formats: Caught in the Abyss of the Idea/Expression Dichotomy Jay Rubin Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Jay Rubin, Television Formats: Caught in the Abyss of the Idea/Expression Dichotomy, 16 Fordham Intell. Prop. Media & Ent. L.J. 663 (2005). Available at: https://ir.lawnet.fordham.edu/iplj/vol16/iss2/7 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Television Formats: Caught in the Abyss of the Idea/Expression Dichotomy Cover Page Footnote Professor Sonia Katyal, Nicole Serratore, Beth Understahl, Lisa Ju, Dorothea Constas, Esq This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol16/iss2/7 RUBIN 3/17/2006 11:08 AM Television Formats: Caught in the Abyss of the Idea/Expression Dichotomy Jay Rubin* INTRODUCTION ............................................................................ 664 I. COPYRIGHT PREEMPTION OF STATE LAW CLAIMS ........... 670 A. THE FIRST PRONG—IDEAS ARE WITHIN THE SUBJECT MATTER OF COPYRIGHT................................................ 672 B. THE SECOND PRONG—THE EXTRA ELEMENT TEST........ 676 C. STATE LAW CLAIMS ASSERTING QUALITATIVELY DIFFERENT RIGHTS........................................................................ 677 1. Property Theories.................................................. 680 2. Contract and Agency Theories.............................. 681 a) Express Contract .............................................. 682 b) Implied-in-Fact Contract.................................. 684 c) Breach of Confidence....................................... 688 II. THE QUESTIONABLE VIABILITY OF STATE LAW CLAIMS ................................................................... 691 A. THE DESNY CLAIM, IS IT STILL VIABLE? ........................ 693 B. THE PARTICULAR PROBLEM IN TELEVISION FORMAT SUBMISSION CASES ....................................................... 695 * J.D. candidate, Fordham University School of Law, 2006; B.A., Business Administration, Fordham College of Liberal Studies, summa cum laude, 2003; former freelance producer and Vice President of Production, Hearst Entertainment, Inc. The author wishes to thank Professor Sonia Katyal for her helpful guidance; Nicole Serratore, Beth Understahl, and Lisa Ju for their editorial contributions and Dorothea Constas, Esq. for her invaluable insight and support. 663 RUBIN 3/17/2006 11:08 AM 664 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 16 III. THE POTENTIAL EFFECT OF LEGAL OUTCOMES ON THE INDUSTRY ........................................................................ 698 A. A STATUTORY SOLUTION IS UNWORKABLE ..................... 700 B. A COLLECTIVE RIGHTS ORGANIZATION IS WORTH CONSIDERING............................................................... 701 1. FRAPA ........................................................................ 703 2. THE WRITERS’ GUILD OF AMERICA AND THE WGA REGISTRY ..................................................................... 705 CONCLUSION................................................................................ 708 INTRODUCTION A highly regarded television producer creates a series format.1 He partners with a studio for financing, lines up some big name talent, and begins shopping the concept to broadcasters. His pitch is received with enthusiasm and he enters into negotiations with one broadcaster. Executives at other networks, not wanting to miss the opportunity for a potential ratings winner, also invite negotiations. Shortly thereafter, the team strikes a production deal with one of the networks. A losing bidder, having failed to secure the project, calls an alternate producer who has presented an idea in the same genre and suggests that they work together to ‘develop something’ in that area. The losing bidder cranks up the production process and launches its version of the program first. What result? In March 2005, NBC began airing “The Contender,” a reality show conceived by Mark Burnett, of “Survivor” fame. When NBC won the contract for the show, Fox, who had been another interested network, developed a concept with another producer, 1 A format is presented in an elaborate package of materials including storylines, character descriptions, talent selections, settings, music, game rules, graphics, script treatments, production guidelines, etc. The ordering and selection of these components becomes the blueprint for production. However, the value of a format is not the particular elements chosen but a concept that underlies the series and is carried forward in each episode. It is somewhere between an abstract idea and the finished program. It is this idea that by necessity must be disclosed to be sold. RUBIN 3/17/2006 11:08 AM 2006] TELEVISION FORMATS 665 Endemol, for a very similar program entitled, “The Next Great Champ,” and announced an early launch. Although NBC, DreamWorks (Burnett’s studio partner) and Burnett were outraged by Fox’s behavior,2 the only legal action initiated by DreamWorks and Burnett (NBC did not join as a plaintiff) was a claim for an injunction based on violations of California Athletic Commission regulations.3 The court denied the motion for a restraining order and the action was dismissed.4 NBC decided to push back its launch date to mitigate the potential dilution of audience share that would certainly result from the simultaneous launch of two identically formatted shows. As often happens in television format disputes, another producer, Leigh Ann Burton, also claimed authorship of the concept behind Endemol’s “The Next Great Champ.”5 She had previously pitched a boxing reality show concept to Oscar de la Hoya’s Golden Boy Productions, the company that collaborated with Endemol to deliver the Fox series.6 In defending itself in the press, Fox stated that they had received five proposals from producers for similar ideas, including Endemol and Burnett.7 The pattern is a familiar one. It is seen everyday in the television industry. A writer or producer generates a concept for a series and pitches the show format to broadcasters and distributors. Shortly thereafter, a similar idea is embodied in a new series without the acquirer having hired him to produce the series, or compensated him for the idea. The fundamental difference between an expectation that the recipient will pay for the concept if 2 Scott Collins, Boxing Shows’ Breaks; ‘Champ’ and ‘Contender’ are Fighting Each Other in Court, but They’re Both Getting Tax Deals and Disclosure Waivers From the State, L.A. TIMES, Aug. 25, 2004, at E1. 3 Id. 4 Lisa de Morales, Fox’s ‘Great Champ’ Still Standing, WASH. POST, Aug. 19, 2004, at C01. 5 Wade Paulsen, Fox’s ‘The Next Great Champ’ Faces New Lawsuit Alleging Idea Theft, REALTY TV WORLD, Sept. 2, 2004, http://www.realitytvworld.com/news/fox-the- next-great-champ-faces-new-lawsuit-alleging-idea-theft-2868.php. 6 Id. 7 Wade Paulsen, Fox’s ‘The Next Great Champ’ Wins First Amendment Court Fight Against NBC’s ‘The Contender’, REALTY TV WORLD, Sept. 1, 2004, http://www.realitytvworld.com/news/fox-the-next-great-champ-wins-first-amendment- court-fight-against-nbc-the-contender-2864.php. RUBIN 3/17/2006 11:08 AM 666 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 16 it is used, and the expectation that the recipient will refrain from using an idea unless an agreement is reached is a fundamental distinction in television format submission cases. The law may protect the expectation to be paid, but not the expectation of exclusive control over the idea. The purpose of this paper is not to crusade for the moral rights of television format purveyors over the opportunistic behavior of broadcasters. Most participants are repeat players and, from time to time, find themselves on either side of such disputes. The production company that pitches a show idea has also been the recipient of hundred of pitches from others.8 Furthermore, every successful show will attract claims from those who have submitted similar ideas to the producing entity or broadcaster in the past.9 The point, rather, is that a lack of legal consequences for the purposeful taking of another’s work will naturally lead to a greater tendency to engage in such behavior. International licensing of television formats is worth hundreds of millions of dollars.10 In reality most acquirers of programming would prefer to license a successful format rather than risk harming long-term relationships or incurring great expense in litigation by stealing the idea. However, producers and broadcasters lately seem more willing to borrow significantly and directly from competitors as well as those who pitch television formats in a “desperate search for proven . adaptable programming to compete in the multichannel age.”11 Is the industry as a whole moving toward anarchy, knowing