Wife Swap v Trading Spouses: Scores level after first round

The format trade is hoping that the battle in the US courts between RDF Media (Wife Swap) and Fox Broadcasting (Trading Spouses) will set a clear precedent telling us what protection will be given in the US to television formats. So far there have only been decisions by courts in Holland (see our early warnings of June and September 2004) and Brazil (see our early warning of June 2004) which have accorded copyright protection to television formats.

The most valuable market for format producers is the US and the value of licence fees for formats will inevitably depend on the extent to which US courts will afford copyright protection to original television formats.

The difficulties faced by the courts in any country are most acute where the format is in the reality genre. Where there is no script, and the programme merely places individuals in unusual (and non copyrightable) settings, and the resulting footage is merely edited and broadcast, how easy is it to characterise the resulting programme as a copyright work? It is not easily fitted into the statutory framework of copyright, either in the US or in any other jurisdiction. No country in the world currently makes express provision for television formats in its intellectual property legislation.

So it has fallen to the courts to make the best job they can in deciding whether one programme is merely an example of a generic type, or whether it is an infringing copy of its predecessor. In a decision of the United States District Court of California on 1 May 2005, Judge James Otero had a stab at untangling the complex conflicting legal principles in an interim hearing in the Wife Swap v Trading Spouses battle.

The difficulties faced by the court were evidenced by the ability of the judge to summarise the essential elements of Wife Swap and Trading Spouses in these few words:

“… both shows centre on the idea of switching spouses from disparate families and watching the ensuing interaction.”

The plaintiff (RDF) advanced its claim on a number of bases, as is common in the US courts. The defendant (Fox) brought a multi-faceted motion to dismiss in an attempt to kill the action. The judge granted that motion so far as it concerned claims of Trade Dress Infringement (our nearest equivalent is Passing Off). He also dismissed the Unfair Competition and Civil Conspiracy claims. One nil to Fox.

However, the judge refused Fox’s motion to strike out the copyright claim against it. One all then at the end of the first leg. This now means that, subject to appeal, unless some settlement is achieved, there will be a decision on the copyright claim concerning these two obviously proximate and related formats.

The judge has also allowed evidence to be given of “admissions by Fox’s representatives that they are aware of Wife Swap US and that they intended to create a show similar to Wife Swap US”. He did, however, strike out evidence adduced by RDF in the form of trade press articles describing Trading Spouses as a “Rip Off”.

In matters of media and law, Europe generally follows where the US leads. Let us hope that the US can give us a clear lead on format protection by means of these proceedings.

For more information and guidance on the international protection of format rights visit the website of the International Format Lawyers Association at www.ifla.tv.

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.