And the winner is… TV formats may be protected by copyright
The High Court has confirmed in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), that TV formats are potentially eligible for copyright protection, although on the facts the claim was dismissed by summary judgment. Nevertheless, this is an important decision which provides insight into an area which, until now, lacked constructive guidance.
Background
The case involved Mr Banner, who developed a TV format called "Minute Winner" in 2003. Mr Banner held meetings with a Swedish TV production company (Friday TV) and discussed the idea for various game shows. Mr Banner argued that the meeting was confidential and mentioned Minute Winner, although Friday TV disputed this on both counts, highlighting that they had refused to sign any non-disclosure agreements in relation to the discussions. Following the meeting, Mr Banner sent an email which included a synopsis of Minute Winner.
In 2009, Friday TV licenced the format for a gameshow called "Minute to Win It", which was produced around the globe. In 2012, Mr Banner took action in Sweden under the Swedish Trade Secrets Act in relation to trade mark, title protection and copyright infringement. These actions failed, with the Swedish Court noting that the synopsis was only a simple core idea.
In 2016, proceedings were issued in the UK in relation to copyright infringement, breach of confidence and passing off, with the claimant being a company incorporated by Mr Banner and the assignee of the rights in Minute Winner.
A dramatic work?
The judgment dismissed all of the claimant's case, on the basis that the claimant did not hold the necessary goodwill for a claim of passing off. Further, the lack of specifics and originality in the Minute Winner synopsis together with the previous Swedish decision destroyed any claim for copyright or breach of confidence.
However, whilst the claimant was not successful, the judgement includes helpful commentary on TV formats generally and whether they may be considered a dramatic work under the Copyright Designs and Patents Act 1988. The term "dramatic work" is not defined, however in Norowzian v Arks Ltd (No 2) its ordinary meaning was described as “a work of action, with or without words or music, which is capable of being performed before an audience."
Whilst the Minute Winner synopsis was not held to benefit from copyright protection, the court held that it would be possible for a TV format to constitute a dramatic work if it was sufficiently described, distinctive and capable of being reproduced in a recognisable or repeatable structure. Helpfully, Snowden J confirmed that this was the case even if each episode had elements of spontaneity and sections which changed.
Practical considerations
A number of practical points can be taken from this case, namely:
- The importance of non-disclosure agreements when discussing ideas with third parties, e.g. producing companies or potential investors;
- When documenting a new TV format, remember to: be specific and detailed; describe a clear structure which could be relied upon to reproduce a distinctive game show in recognisable form; and identify the elements that make the new format unique; and
- Relevant aspects may include: set design, catchphrases and any consistent features/methods used in the format.
It was noted in the Judgment that the position could be different if Minute Winner had ever been produced, as in that case copyright may have subsisted in individual episodes.
Comment
Whilst ultimately unsuccessful in this case, the judgment has provided an important confirmation that the format of such shows is potentially capable of being classified as "a dramatic work" under UK copyright. The guidance provided in the case is no doubt of great interest to the media industry and should be borne in mind when creating new television formats and as an avenue to protect their products.