TRADE MARK, COPYRIGHT
Television, radio, film
ARTICLE:
Jonathan Coad, solicitor and Eleanor Adams, solicitor, of Swan Turton

After Simons Cowell and Fuller backed away from a full out battle over the format rights to Pop Idol and X-Factor, Jonathan Coad and Eleanor Adams look at a French decision which shows how a programme format can be protected even where no copyright is found to subsist in a format, here by using the laws of passing off.

The Paris High Court has given protection for a television programme format under the law of passing off. The claimants, Saranga Production, produced a format for a political docu-drama show entitled Crise en direct. The broadcaster, Canal Plus, one of the defendants, sought proposals from production companies for a new politically themed programme. The claimants met with the defendants and presented their ideas. Canal Plus then commissioned a different production company to produce programmes using themes and characteristics in the claimants’ format. The defendants, Canal Plus, a production company and two journalists involved in production, were then responsible for producing and broadcasting a programme entitled C’est déjà demain. 

The claimants brought an action for passing off in respect of the programme C’est déjà demain. In order to establish passing off under French law, the claimants had to show that the defendants had intentionally taken characteristic features of their format, that such formats were of economic value and that this had caused them loss. The defendants argued that they had independently developed their programme before they met with the claimants. They also argued that the claimants’ format had no independent economic value because it lacked originality and merely used themes and characteristics which were commonplace within the public domain. The court found that there was no evidence that the defendants had already developed their programme before meeting the claimants. The issue of originality of the format was not relevant to establishing passing off, unlike in the law of copyright. The court also held that formats are “commercial products” with inherent economic value.

The court held that the broadcast of the defendants’ programme had caused the claimants loss in that it had deprived them of the opportunity of marketing their format to another broadcaster.  The defendants were ordered to pay damages of 150,000 Euros and other relief was granted. lthough this decision does not provide any indication of whether the French court might afford copyright protection to television formats, it demonstrates that the court is willing to grant them protection via other forms of legal action. This is consistent with a general trend worldwide to give protection to this valuable species of intellectual property.

See the article Format Fortunes: Is there a legal recognition right for the TV format? by Ben Challis and Jonathan Coad at http://www.musiclawupdates.com/articles/ARTICLE%2004formatfortunes.htm

The Swan Turton website is at www.swanturton.com This article is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court .