The High Court in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Ors [2017] EWHC 2600 (Ch) has affirmed that television formats are potentially eligible for copyright protection under UK copyright law as ‘dramatic works’, even if the format contains elements of spontaneity and events that change from episode to episode.
Although ultimately dismissing the claimant’s claims at a Summary Judgment application, the guidance from Snowden J on the level of detail that may be required for a format to be protected in copyright is nevertheless helpful for those wishing to protect TV formats.
The facts
The action in question concerned ‘Minute Winner’, a television game show format in which members of the public would be chosen at random to perform a task within one minute to win a prize. The claim was brought by Banner Universal Motion Pictures Limited (BUMP), representing the author, Mr Derek Banner.
The format was reportedly disclosed during negotiations with a Swedish television production company, ‘Friday TV’. According to Mr Banner, Minute Winner had been used to form the basis of the game show ‘Minute to Win It’, the rights to which had subsequently been sold in over 70 countries worldwide, following the disclosure of the format by Friday TV in breach of confidence.
BUMP alleged that the 'Minute Winner Document' containing the TV format was an ‘original dramatic work’ within the meaning of sections 1(1)(a) and 3(1) of the Copyright Designs and Patents Act 1988 (CDPA) in which UK copyright subsisted and that such rights had been infringed by the broadcasting of eight versions of Minute to Win It in the UK on ITV2.
Judgment
Snowden J summarily dismissed the claim as having no reasonable prospect of success. In doing so, however, he affirmed that TV formats were potentially eligible for copyright protection under UK copyright law as ‘dramatic works’, even if elements of the formats were spontaneous or changed from episode to episode.
Under the CDPA, the meaning of ‘dramatic works’ is not specifically defined, although it is expressed to include a work of dance or mime. Whether such protection extended to television formats, however, had been in some doubt following earlier decisions of the UK and New Zealand courts (most notably the ‘Opportunity Knocks’ case).
Although he declined to set out the precise conditions to be satisfied before a television format could be protected, Snowden J did provide useful guidance as to the minimum requirements which must be present:
- There must be a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type.
- Those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
On this analysis, the contents of the Minute Winner Document were 'unclear and lacking in specifics' and, as such, no copyright subsisted. BUMP's claims for passing off and breach of confidence were also dismissed, on the basis that BUMP was estopped from bringing the claim for breach of confidence (as the Swedish courts determined the issue in an action brought by Mr Banner against Friday TV) and Mr Banner had no goodwill in the Minute Winner format in the UK.
Points to note
Format owners should bear in mind the importance of recording sufficient details about the format in documentation (such as detailed pitch documentation and production bibles) in order to meet the minimum criteria set out in Snowden J's judgment.
In particular, the documentation should set out a coherent record showing how the format could be relied upon to reproduce a distinctive show in a recognizable form. However, format owners should also be aware that, while a format claim is possible in principle, in practice it will remain difficult to pursue successfully under UK law. This is in contrast to the position in other EU Member States e.g. Italy (see RTI Reti Televisive Italiane Spa v Ruvido Produzioni Srl, decision 18633/17 (27 July 2017)).
Finally, the case also highlights the importance of ensuring that robust confidentiality provisions (such as a signed non-disclosure agreement) are in place before commencing negotiations, to ensure that information disclosed is not subsequently misused.