The Federal Court of Australia has handed down judgment in the most recent dispute concerning the trade in television formats and the issue of whether formats, particularly in the reality genre, should be afforded copyright protection.
Ninox Television created a reality home renovation programme called Dream Home in New Zealand, which was broadcast there by TV New Zealand. Ninox claimed that it and TV New Zealand owned the copyright in the Dream Home format and that Nine Films and Television and Nine Network Australia infringed their copyright in producing The Block, broadcast in Australia.
Nine claimed in response that Ninox’s allegations constituted unjustifiable threats of copyright infringement and misleading and deceptive conduct under Australian law.
The background to the dispute was as follows. After Dream Home became one of New Zealand’s most successful television shows, Ninox wanted to exploit it outside New Zealand. Nine got a licence in Dream Home and produced a series of Dream Home in Australia. Nine then came up with the concept of The Block, which they claimed was a drama show set in a renovation environment.
Ninox claimed that the dramatic format of The Block involved a reproduction of the structure of Dream Home. Nine denied copying Dream Home in producing The Block. It claimed that there was no relevant or substantive connection between the two formats and that there were significant differences between them. Nine claimed that The Block was an original and pioneering concept.
Mr Justice Tamberlin considered the issue of whether copyright had been infringed by reproduction of a substantial part of the Dream Home format. He considered the similarities and differences between the programmes in the light of each of the series as a whole. The judge addressed the question of whether any of the episodes of The Block used a substantial part of the incidents, plot, images or sounds in Dream Home.
In addressing the question of whether The Block was an infringing copy of Dream Home or simply a generic example of a reality format on a general theme, the judge considered the issue of whether a television programme format could be termed a copyright work. The judge cited the decision of the Privy Council in Green v Broadcasting Corporation of New Zealand where it was held that there was no copyright in a talent show television format which was an idea only. The judge also emphasised authorities which established that there was no copyright in a general idea or theme, however original, but only in the expression of it.
The judge held that there had been no copying, conscious or unconscious, of any substantial part of the Dream Home format and Ninox’s claim was dismissed. Neither was there any substantial reproduction of the structure of Dream Home because there were large elements of unscripted dialogue and interaction within the overall framework of the programmes. Having considered the particular elements of the Dream Home format, including events, characters and emotional elements, the judge was not persuaded that these aspects of the programmes were “at the necessary level of detail or bear any sufficient resemblance in mood, tone, portrayal, structure, visual and aural impact, or by way of general impression from content, to support a conclusion that there has been any substantial reproduction of the Dream Home format”.
The judge considered that the characteristics and themes of both programmes were in sharp contrast. “Having regard to technique, context, character of contestants, mood, music, image, style and basic theme content, the two productions and formats are a long way apart and are quite different in their essential features.”
Although Nine were successful in their claim for unjustified threats of copyright infringement, they were unsuccessful in their claim for misleading and deceptive conduct. It was held that to make a claim of infringement without more was not of itself misleading and deceptive conduct simply because the claim failed.
Unlike the courts in Holland and Brazil, it seems that the Australian courts are reluctant to afford copyright protection to reality television formats.