Game over for copyrighting TV formats?

Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd and others

November 2017

Although a claim for copyright infringement relating to the alleged copying of a TV game show idea failed, the Court held that a TV format could be protected by copyright in other cases. 

Background

The claimant devised a TV game show format called “Minute Winner” The basis of the game show was written in a brief document. The claimant claimed to have UK copyright as a dramatic work.The document contained a notice to this effect. The format was essentially a television program where contestants have one minute to win a prize, and included the catch phrase “You have a minute to win it”.

”Minute Winner” was then allegedly disclosed to a Swedish network in 2006 in circumstances which the claimants argued gave rise to an obligation of confidence. This information was then alleged to have been misused by the defendants due to their involvement in a English broadcast of “Minute To Win It”, a show which allegedly utilised the claimant’s TV format and whose format was also sold in many different countries globally.

In addition to copyright infringement, the claimant alleged breach of confidence and passing off.

Breach of Copyright

In assessing whether the contents of the document had qualified for copyright protection, the Court gave careful consideration to whether a format of a quiz show could be protected as a dramatic work. The following factors were considered:

  • Orignality – a work, taken as a whole, must be an expression of the author’s own intellectual creation. For a work to possess originality, not every part of that work must be “novel or ingenious”.
  • Dramatic works – this expression must be given its ordinary meaning and is essentially a work of action capable of being performed before an audience. This would therefore cover a re-enactment of an episode of a TV game show, but only where the episode has been recorded. In this instance, as the show in dispute was never produced, this could not amount to a dramatic work.
  • Game show format – Although game shows have elements of spontaneity owing to questions posed and answers given, it was considered arguable that as a matter of concept a game show could be subject of copyright protection as a dramatic work.

Copyright protection would not subsist unless, as a minimum: (i) there were a number of clearly identified features which, taken together, distinguished the programme in question from others of a similar type; and (ii) those distinguishing features were connected with each other in a coherent framework which could be repeatedly applied so as to enable the show to be reproduced in recognisable form.

Against these requirements, the claimant could not persuade the Court that the contents of the document had qualified for copyright protection and therefore the claim for subsistence and infringement of copyright was dismissed.

Breach of confidence

There was no breach of confidence as when the claim was brought in the UK, the Swedish court had already ruled that no confidential information had been disclosed; the Court declared that the cause of action estoppel operated.

Passing off

On the facts, the Claimant had no goodwill in England in the format or the name of the programme nor a reputation in relation to either the name or format. Additionally, there had been no risk of confusion between the shows produced under the name 'Minute To Win It' and the claimants concept in the minds of the television networks and production companies that might have been interested owing to their very different formats. The claim was therefore dismissed.

Issues to consider

This case confirms that substantial attention must be given to drafting documents containing TV formats, as they must include as much detail and information as possible. Further, drafting of robust non-disclosure agreements should be considered when protecting potentially valuable works such as TV formats. It is encouraging however that the UK Courts may well be prepared to recognise that copyright may subsist in such formats.

This update was prepared by HGF IP Solicitor Maherunesa Khandaker.  If you would like further advice on this or any other matter, please contact Maherunesa. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.