By Jonathan Coad, Solicitor
The trade in television formats has, since its inception over 50 years ago, been an international one. The courts worldwide are increasingly facing the same issue, which is whether the concepts from which programmes – particularly in the reality genre – are made should be permitted the monopoly of copyright protection. A dispute currently being played out in the Australian courts typifies that dilemma. First there was the programme Dream Home created by Ninox Television. Then there was The Block for which Nine Films and Television was responsible along with Nine Network Australia. Then there was The Complex which showed in America by means of a licence granted by the creators of The Block. Nine Network produces and purchases television programmes and supplies them to Nine Films which in turn exploits them by the granting of licences. Ninox makes television programmes in New Zealand for broadcasting there and for sale overseas.
In this case, which was heard in Australia last month, Ninox asserts that it and TV New Zealand own copyright in the Dream Home format, and that by producing and screening The Block, Nine Network and Nine Films infringe that copyright. Nine in turn claims that the very threat against it of the copyright action by Ninox is actionable under Australian law, and that Ninox’s allegations of breach of copyright constituted misleading or deceptive conduct actionable under the relevant Australian statute. This dispute arose when, after taking a licence in Dream Home and producing one series, Nine then began production of what they claimed was their series, The Block. Ninox claimed to be the owner of the copyright and the format rights to Dream Home, and claimed that this copyright was infringed by Nine’s production and distribution of The Block. Ninox had originally initiated proceedings in the USA against Nine’s US licensees of The Block. The defendants in that action are Fox Entertainment Group, Freemantle Media North America and Fox Television. The US proceedings have been stayed pending the outcome of the Australian proceedings. On 7 June the Federal Court of Australia handed down judgment in an application for security for costs made by Nine against Ninox, which application was granted to the tune of $100,000. We now await the outcome of the trial.
Programmes such as those in dispute in Australia are now earning for their creators millions of dollars in licence fees worldwide. But this lucrative trade lacks the security of the protection which would be afforded if they were accorded the status of copyright works. So the stage is set for what will hopefully be an authoritative determination by the Australian courts of the extent to which that country will protect rights in reality television formats of this sort.
This update is © The Simkins This bulletin 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.
The Simkins website is at : http://www.simkins.com
For more information concerning the state of the law internationally on television formats, visit: http://www.ifla.tv