Review of format rights – a familiar outcome in the "Happy Camper" case
Although standard in the television industry, there is still a grey area surrounding the legal protection and enforceability of format rights. In the UK, television programme formats are not afforded a separate legal right. Many have tried to enforce these rights by attempting to link these to other intellectual property protections, such as copyright, without avail and this latest case confirms the barriers to bringing a claim based on format rights.
The 1989 "Opportunity Knocks" case saw one of the first attempts to protect format rights. This case was unsuccessful in arguing that certain distinctive features of the game show should be protected by copyright as literary and dramatic works. More recently, in the 2017 "Minute Winner / Minute to Win it" case, the High Court considered a similar question of whether the format of a television quiz show could be protected as a dramatic work under copyright. This time, however, it was held that this could be possible if certain conditions applied. Firstly, there would have to be a number of clearly identified features which, taken together, distinguish the TV show from others of a similar type; and secondly, 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. Whilst it was held not to be applicable in this case, it did highlight that these formats could have the potential to be protected in copyright in the future.
Interestingly, in Italy, it has been held that format rights could be protected under copyright law. In the case of RTI Reti Televisive Italiane Spa v Ruvido Produzioni Srl, the Italian Supreme Court confirmed that a television format could be protected, provided the work meets certain criteria. This would, for example, include possessing a programmatic structure, with central characters and a main plot line.
Although these previous cases have tried to legally protect format rights in game shows, the recent High Court case of Happy Camper Productions Ltd v BBC, concerned the protection of the premise of a comedy drama. Happy Camper, a production company, were seeking to rely on the protection of literary copyright in order to obtain an interim injunction against the BBC. It is a familiar story; Happy Camper claimed that the BBC had copied their idea for a comedy drama. The concept pitched to the BBC was based around a caravan park in Wales, titled 'Down the Caravan', for which they had produced a pilot script. They argued that the BBC had used its ideas and concept for the creation of its show – 'Pitching In'.
The court considered whether an interim injunction should be granted against the BBC. The first question it considered was whether there was a serious issue to be tried. For this, Happy Camper would have to show that there had been copying of a substantial part of the pilot script. As Happy Camper's claim was that the two programmes were similar in premise and concept, although there were found to be some similarities in the script, these were at "a high level of generality". This was not enough to prove that there had been infringement of literary copyright in script, and there were no further protections possible to claim, and so the injunction was denied.
If the claim had not fallen short at this stage, the court considered that the second question would be whether damages would be an adequate remedy. If they were, the injunction would not be granted. Interestingly, the judge confirmed that damages would be an adequate remedy as Happy Camper was proposing to commercialise the script in any event. The final question considered the cost and reputational implications of granting an injunction and confirmed that due to the high risk for the BBC, the balance of convenience would fall in the BBC's favour.
This recent case highlights the continuing difficulties that those claiming an infringement of their format rights may face and the limited protections that are available in other intellectual property rights. As the law surrounding format rights is yet to be developed, format creators should consider other ways in which they may protect these ideas. The law of confidence, NDAs or informal agreements not to copy are likely to continue to be the prevalent means of protecting such rights for the meantime, until there is a significant development in intellectual property law.