The last format rights dispute to go to trial was some 15 years ago, when Hughie Green sued the New Zealand Broadcasting Corporation over his huge hit programme, ‘Opportunity Knocks’. Despite the fact that the programme broadcast by the New Zealand Broadcasting Corporation was virtually identical to the one created by Hughie Green, he lost all stages of his case right up to the Privy Council. The Privy Council ruled that Hughie Green’s scripts of his programme ‘did not do more than express a general idea for a talent quest, and hence were not the subject of copyright.’
Based on our experience of conducting the proceedings on behalf of the Granada Media Group in their successful defence of the action brought against them by Charlie Parsons and Castaway Productions Limited, we consider that if the Hughie Green case had been brought in the current legal context, he would have had a far greater chance of success, since both the television industry and the attitude of the courts to such issues have radically changed in the last 15 years. One reason is the enormous commercial value of original formats, as evidenced by the very substantial sums of money for which they change hands at international trade fairs, and by agreements between broadcasters throughout the world. If the law is to properly protect commercial endeavour, then when a new species of intellectual property (such as formats) is recognised by the television industry, the law must step in to protect it.
However, the impression given by the wide reporting of this case, and some of the comment which appears to have been based on those reports, is that the outcome shows that format rights are not capable of protection under UK jurisdiction. The rationale for these assertions are that the Granada Media Group successfully defended the action concerning ‘I’m a Celebrity… Get Me Out of Here!’ despite the fact that the format of that programme was very similar to that of ‘Survivor’. In fact, the formats were fundamentally different, and the very strong and clear judgment of Judge Preska in the US proceedings concerning the same programmes makes this absolutely clear. Although the US judgment was the result of an application for an injunction, the judge came to very clear and informed conclusions (after seeing the programmes, reading depositions and hearing several witnesses concerning how different the two programmes were), and identified no less than 15 distinctive elements which differentiated them. She concluded that the plaintiffs in that case (CBS – who were the ‘Survivor’ licensees in the US) had failed to show ‘sufficiently serious questions going for the merits of the case to make them a fair ground for litigation.’ In other words, the judge did not think that the claim put forward by CBS, that the programmes were substantially similar, was even of sufficient merit to justify the proceedings being brought before a court.
Neither that judgment nor the outcome of the UK litigation therefore by any means rule out a successful action to prevent infringement of an original format. The laws of copyright, passing off, and confidence may all be relevant. Furthermore, there are a number of practical steps which can be taken in order to improve one’s chances of success should litigation be necessary.