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This article first appeared in Intellectual Property Magazine, 1 June 2012.
A recent case issued in the High Court by Brian Belo, Massive Productions and Sassy Films sees the Claimants sailing into the relatively unchartered waters of claiming copyright infringement in a TV format. The background to the case has a familiar ring to it; television producers continually face disputes as to ownership of ideas for new programmes. This case is unusual, however, since those who feel aggrieved rarely get as far as actually suing a producer or broadcaster. This is due in part to the inherent difficulty in establishing copyright infringement in TV formats, which essentially are concepts for broadcast works and, linked to this, the lack of precedential case law in the UK.
Background
Brian Belo (whom the Particulars of Claim describe as "an entertainer, television presenter, media personality and winner of Big Brother) alleges that, in conjunction with the other Claimants, he devised an original television show entitled 'Totally Essex'. Belo claims that ITV's hit show "The Only Way is Essex" ("TOWIE"), produced by Lime Pictures, is basically a rip-off of his "Totally Essex" concept and constitutes both copyright infringement and breach of confidence.
TOWIE prides itself on being a show which captures "real people doing real things". It features wealthy 20-somethings from Essex going about their lives, discussing loves and hates, dreams and aspirations, boob jobs, fast cars and fake tans. Its format is dubbed "dramality" - a hybrid of drama and reality apparently first made popular in the US by TV shows such as The Hills and Laguna Beach. The show incorporates a mixture of real, scripted and partially-scripted scenes, events and character behaviour. Belo got as far as making a pilot tape for Totally Essex which he claims to have shared with ITV. Indeed, the pilot tape even features some of the characters who would go on to star in TOWIE.
ITV rejected Belo's pilot and nine months later launched TOWIE. TOWIE is now in its fifth series and continues to be one of ITV's most popular shows.
Legal Position
(i) Copyright Infringement
The Claimants claim that they are the authors and joint copyright owners of the Totally Essex format, which, they say, is an original artistic and/or literary and/or dramatic work. One could be forgiven for thinking that this is a straightforward case in view of the facts that the pilot tape had allegedly been made available to the Defendants, both shows centre around exactly the same idea and both are based on the 'dramality' format. The legal position, however, is complex.
In order to establish that copyright has been infringed, the Claimants first must identify the original work(s) created and demonstrate that copyright subsists in that work. They then have to show that elements of the original work (collectively comprising a "substantial part" of that work) have been copied by TOWIE. These preliminary steps are routine in any copyright infringement action. In cases involving ideas for non-scripted or partially-scripted television shows, however, they can be very difficult grounds to establish.
Belo's case appears to be founded on two copyright works: the pilot video and the script.
The Pilot Video
The Claimants will have to prove to the Court that a substantial part of the Pilot has been copied by the Defendants. The claim lists various alleged similarities between the two shows including the fact that both use the 'dramality' concept, have similar titles and share four leading characters. Whilst these factors are, at first glance, compelling, in the absence of strong evidence they are unlikely to be sufficient to persuade a Court to make a finding of infringement. The Defendants will no doubt argue that these elements, when committed to paper or film, are not in themselves sufficient "works" worthy of copyright protection; that they are, at best, commonplace in TV reality shows and, at worst, simply ideas not expressed with any originality and quite capable of being independently thought up by a third party.
The Script
TV formats and reality shows are notoriously difficult to protect as copyright works. The absence (or partial lack) of a script makes it very difficult to identify the work which you are trying to protect. If the Claimants can show that they own the copyright in the Totally Essex scripts, and that a substantial part of those scripts has been reproduced in TOWIE, they should have an actionable claim for copyright infringement. However, script writing in dramalities is generally limited to giving cast members basic themes to develop in pre-arranged settings, leaving most of the expression of the theme to improvisation by the characters. It is therefore not a straightforward claim even if copying of themes can be established (as the Da Vinci Code case made clear).
(ii) Breach of Confidence
The Claimants also allege breach of confidence. They claim to have provided the Defendants with personal contact and biographical information about various Totally Essex characters; and to have done so in circumstances where it was clear that the Defendants were not to disclose or use the information without the Claimants' consent. It is alleged that, by using that information for the purposes of contacting the relevant individuals to appear in TOWIE, the Defendants have breached that duty. Given the potential hurdles the Claimants are likely to face on the copyright infringement claim, it may be that their best chance of securing relief is through the breach of confidence action. Even if a case can be made out in breach of confidence, this surely will not be sufficient to prevent ITV from further exploitation of TOWIE. The remedy would more likely be limited to some form of financial compensation. It is curious too why breach of confidence is not argued in respect of the entire pilot film rather than merely the personal contact details of a few of its characters.
Comment
The issues in this case go to the heart of one of the central tenets of copyright law - the idea/expression dichotomy. We all know that copyright protects the expression of an idea and not the idea itself. A simple idea for a television show in which people from Essex are followed around by television cameras as they go about their daily lives is, no matter how developed, not capable of benefiting from copyright protection, even if the idea is vocalised in discussions with television production companies. However, once the idea is expressed or "fixed" by being recorded onto a videotape, or written down into a script, the position changes.
The outcome of this case will depend on persuading the court that (a) the Defendants have copied a substantial part of the Claimants' pilot film and/or script and (b) the part taken of the Claimants' work is itself original and protectable by copyright.
No date has yet been set for a hearing of the claim.
Rebecca Swindells, partner and Michael Sweeney, solicitor in the IP & Technology Dispute Resolution Group at Fieldfisher