With great difficulty, even in France! The Court of Appeal in Paris recently handed down a judgment in SAS ALJ Productions v Société Endemol Productions, overturning the court at first instance, which had granted an injunction blocking the exploitation of ALJ’s Dilemme.
Endemol claimed that Dilemme reproduced certain key elements from Endemol’s Loft Story and Secret Story, direct descendants of Big Brother, and had created confusion in the minds of the public as Dilemme, in its concept and the programmes as transmitted, was identical to and aimed at the same audience as Loft Story and Secret Story, and was so similar to these programmes as to be indistinguishable from them.
What is interesting is that Endemol did not seek a remedy under copyright, but chose to proceed on the basis that ALJ’s production and exploitation of Dilemme constituted unfair competition (concurrence déloyale) by parasitical behaviour (parasitisme) and a breach of confidence.
The breach of confidence claim was dismissed by the court. Even though Alexia Laroche-Joubert, the founder and guiding hand behind ALJ, had previously been a senior executive in the Endemol group, there were no relevant express undertakings of confidentiality and, absent such undertakings, a former employee is entitled to use in his/her new employment the know-how and experience gained in a former employment.
The court was not impressed by Endemol’s arguments on unfair competition by parasitical behaviour. It found that ALJ had not profited from Endemol’s intellectual and financial investments in conceiving, developing, financing and promoting Loft Story and Secret Story. In bringing Dilemme to fruition it had not followed in Endemol’s slipstream, taking unfair advantage of Endemol’s efforts.
The court held that many of the production techniques applied in Dilemme were common practice in reality television. The court mentioned that the Conseil Supérieur de l’Audiovisuel had in 2001 identified three key ideas which characterise reality programmes based on confinement: (a) confine a group of people who have no previous connections within an enclosed space; (b) put them under constant camera surveillance; and (c) make them submit to a game of elimination, where the decision to eliminate is made by the group itself or the audience or both.
The court said that:
- Endemol could not claim exclusive rights to elements such as confinement and isolation, where participants live in a house they cannot leave, without contact with the outside world, under constant camera surveillance and are subject to a system of elimination.
- The characteristics of the place of confinement Endemol claimed as unique to its programmes – such as a specially designed set with bold colours, a garden with a swimming pool, two dormitories, a sitting room and a modern kitchen – were to be found in most similar programmes across the world because the set was designed so as not to allow the participants to avoid confrontations with each other.
The court was similarly dismissive of a number of other factors claimed by Endemol as distinctive, holding that these were simply generic. It held that the names and logos of the programmes were distinct and that Dilemme contained a number of elements which were not to be found in the Endemol programmes. The court did not believe that there was any risk of confusion.
There is no direct equivalent under English law of France’s unfair competition by parasitism. The closest is “passing off”, which is much narrower in scope and is difficult to prove in format rights cases. To succeed, Endemol would have had to demonstrate that (a) goodwill had been acquired in the format, (b) a false statement made by ALJ had caused confusion in the market for the format (ie that a substantial number of the audience for ALJ’s programme had watched ALJ’s programme or that broadcasters had licensed or commissioned the programme because ALJ had led them to believe that it was one of the Endemol programmes in respect of which the claim had been made, and (c) as a result, Endemol had suffered some quantifiable damage (reduced demand or value in the format). In practice, this can be quite a mountain to climb.