International recognition of TV formats continues: Endemol wins Maltese Big Brother case

The format trade is now worth well over Euro 2 billion per annum worldwide, and its value grows steadily. The American Idol format alone was recently valued at $2.5 billion. Despite these remarkable numbers, and the vast sums of money that change hands daily in licence fees for television formats, the law in this area remains far from certain. There is still no statutory recognition anywhere in the world for this immensely valuable species of intellectual property.

Until legislatures find time to make amendments to their copyright statutes to include formats as a species of copyright work, we must continue to draw lessons from the litigation there is on this subject. A body of international case law is building up which will enable the television industry – and the specialist lawyers that serve it – to advise on this difficult area of the law.

The first specific recognition by any court of the existence of the format in an unscripted broadcast programme (in that case it was a radio programme) was in 2001 by the Supreme Court of Hungary. Since then decisions by courts in a number of countries including Holland and Brazil have confirmed that in appropriate circumstances a court will afford protection to television formats.

The leading champion of format rights protection has been Endemol, which has recognized that it cannot expect broadcasters to pay licence fees for formats which Endemol will not protect by policing them worldwide. Endemol has recognized the commercial importance of an uncompromising attitude to infringers, and has brought groundbreaking actions around the world to protect the value in its formats. The most recent action was in Malta.

After a tense legal battle, on 2 May a Maltese court ruled in Endemol International’s favor in its proceedings against the broadcasters and producers of L-iSpjun, a copycat version of the international hit format, Big Brother. The offending series was broadcast on Malta’s national television station, Public Broadcasting Services (TVM), and Melita Cable TV, and was streamed live on Go Mobile on its cellular phone network. Watermelon Media & Communications and P&D Communications were the producers of the series.

Endemol had filed a claim against the broadcasters and producers behind L-iSpjun, claiming its intellectual property rights in the Big Brother format had been infringed. Endemol had demanded that the derivative show be pulled and was also seeking unspecified damages against the producers. At the end of April, as part of the legal process, Endemol filed a series of precautionary warrants against all parties involved.

The Maltese court upheld these warrants and ordered the seizure of the TV studio equipment, props, tapes and other devices used as part of the production of the show, as well as freezing other assets of the defendants, including bank accounts. According to reports in the Maltese media there was a “ping pong legal battle” with the local producers persuading the court to sit in the evening in an attempt to keep their show on air. In the end the show was dropped in the face of Endemol’s concerted legal action.

Wim Hoen, the intellectual property rights manager at Endemol International, commented: “We’re delighted with the Maltese Courts’ decision which fully vindicates our view that this production was in breach of our rights. We hope this sends a clear message that this kind of infringement will not be tolerated and will be acted upon.”

How then do you give yourself the best chance of protecting your format as a copyright work? What do you do if you find that you are developing a format which is too close to another format for comfort? What do you do about copycats in your own territory or overseas? The International Format Lawyers Association (www.ifla.tv) offers a practical seminar which answers those questions.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.