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Artistic works: can copyright subsist in TV show formats?

08 Aug 2018

Historically the courts have been slow to recognise copyright in TV show formats since a case concerning the rights to Opportunity Knocks, the original iconic talent show than ran for more than 30 years. However the courts have now acknowledged that, in principle, the format of a TV show could potentially attract copyright protection as a dramatic work – even though the copyright claim failed on the facts of that particular case.

In order for a TV show format to attract copyright protection:

  • there must be a number of clearly identified distinguishing features, and
  • those features must be connected by a coherent framework which would enable the show to be recognisably reproduced.

The case in question concerned an idea for a TV quiz show format called “Minute Winner” created by Mr Banner .  The show involved participants carrying out day-to-day tasks within a minute to win a prize. A short synopsis of “Minute Winner” was (unsuccessfully) pitched to Swedish TV company, Friday TV, by Mr Banner. In 2010 Friday TV launched a TV game show called “Minute to Win It” in the US and subsequently the show was sold into more than 50 countries around the world.

The proceedings that ensued in Sweden under the Swedish Trade Secrets Act ultimately failed. English proceedings for copyright infringement also failed because not only did the court hold that the shows were not materially similar, but also that the synopsis was not sufficiently clear nor specific and did not “identify or prescribe resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form”. Furthermore, a claim in passing off also failed because it was not possible to establish goodwill in the “Minute Winner” idea.

Even though the case failed, the court provided some clarity on the potential for a TV show format to be protected by copyright (although this is currently far from settled law).  Production companies should take care when they disclose their ideas and would be wise to document as much detail as they can about a programme format.  They should also ensure that appropriate confidentiality provisions are in place, and consider using non-disclosure agreements to reduce the risk of copying.

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