Television formats are big business worldwide. However, there is no such thing as a “format right” under English law. While it no doubts suits the TV format industry to have us believe otherwise, TV formats are vulnerable, in legal terms, to being “copied”. Despite this fact, there is no “generics” TV format industry to speak of and perhaps the lack of mainstream copy-cat formats is due to non-legal, industry factors.
Series 5 of the Great British Bake Off might have just finished, but that is nowhere near the end for the worldwide commercial exploitation of this format as far as the BBC is concerned. Indeed, this “format” has already been licensed throughout the word, delivering substantial licence fees back to the BBC (through BBC Worldwide – the BBC’s commercial division). The ability of television companies to licence formats such as these throughout the world depends largely on whether such content-owners can lay claims to sufficient intellectual property rights to protect such content.
There is no such thing as a “format right” per se under English law. Instead, those looking to protect to protect format rights, must look to more generic intellectual property rights, namely copyright, trade marks and/or design rights. These “IP rights” are often bundled together with a collection of other, technically non-IP rights, such as know-how and confidential information. Basic contract law might also prove useful added protection. These elements are briefly explored below.
Copyright and Designs
Copyright does not protect the “idea” of the show. Instead, protection applies more to the expression of that idea and only in respect of certain categories of original “works”, which include graphical works, music and literary works. In order to ensure maximum protection in terms of copyright, a bible should be created for the format recording as many details as possible, e.g. scripts, set designs, floor plans, logos, costumes, theme tunes, jingles etc. Registered and unregistered design law may also be relevant to add a further layer of protection.
The title of a TV show can be registered as a trade mark. For example, “The Great British Bake Off” is a UK registered trade mark (no. 2557737) owned by Love Productions Limited.
In some territories, there are laws which restrain “unfair competition”. In the UK, there is a similar-ish law of passing off. These laws might, depending on the facts, protect a format from being used by a third party.
When sharing new and potentially lucrative format ideas, developers should ensure that any pitches are carried out under a confidentiality agreement. However, confidentiality agreements can be difficult to enforce (because breaches of confidence can be difficult to evidence), nonetheless having an agreement in place and may discourage bad behaviour.
Contract and know-how
Contract law can be used to prevent individuals from participating, and sharing know-how, with rival copy-cats shows. The ability to tie a particular individual might, depending on the individual, prove a valuable method of preventing a copy-cat getting off the ground.
Pop Idol v X Factor – battle of the formats
Pop Idol was the first of the television talent-spotting competitions. This format has been licensed worldwide, including the famous “American Idol” version. However, in the UK, Pop Idol was usurped by X Factor, the rival show developed by Simon Cowell. There was a legal claim brought by the owners of Pop Idol against X Factor. This litigation was settled before trial with apparently Simon Fuller (of Pop Idol) being made a joint partner of X Factor and Simon Cowell being tied to being a judge in American Idol for a further 5 years.
There has not been a thorough examination of TV format rights in the English Courts. There was a Privy Council case from 1989 (Green v Broadcasting Corporation of New Zealand), where Hughie Green sought to establish a format right to his programme concept, Opportunity Knocks. The Privy Council held there was no such thing as a “format right” under English law. Furthermore, the extent of the detail of the format presented to the court on this occasion was not great and therefore this case cannot be considered to amount to a comprehensive analysis of the law.
From a legal perspective, it is a shame that the Pol Idol v X Factor case did not go trial. While X Factor claimed during that the dispute that their format was “different”, the format clearly had close similarities. However, the fact remains that UK IP laws are not well-suited to protecting a TV format. While a bundle of various IP rights might well be enough to lay claim to a particular format, it remains probable that an English court would be reluctant to restrain a competing format that was sufficiently differentiated (e.g. different name, feel etc).
The UK TV industry has developed a valuable worldwide commodity: TV formats. Such companies are not likely to admit voluntarily that format rights are not build upon any other than rock-solid legal foundations. Nonetheless, the reality of the situation is that such formats are likely to prove difficult to protect against a well-thought through and differentiated copy-cat show.
Luckily for the TV format industry, the current structure of the TV industry acts as a further barrier to competing formats coming to market. For as long as channels such as BBC One and ITV 1 continue to be the gate-keepers and key-holders for establishing a nationwide and then worldwide success, the route to market for viable competition is likely to remain closed. After all, would the BBC, fresh from its latest baking windfall, have any interest in commissioning a rival bake-off or any other show that would threaten one of its other established formats? Would the BBC or ITV even wish to upset the industry apple-cart by copying one of the other’s market-leading formats, thus throwing the whole worldwide licensing model into jeopardy? Not likely.
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