The international trade in format rights is now worth $1billion annually, but formats remain a species of intellectual property which has scarcely hit the radar of most jurisdictions around the world. The Dutch Court of Appeal recently found a television format to be a copyright work, although a claim of breach of copyright based on that format failed. However, a successful claim for breach of copyright has now been made in Brazil based on the Big Brother format.
Endemol (which owns the format) entered into negotiations with TV SBT of Brazil in the course of which Endemol provided extensive information on the Big Brother format. TV SBT chose not to acquire a license for the format and produced “Casa Dos Artistas” (the Artist’s House), which the Brazilian Court described as a “rude copy”. Endemol and its Brazilian licensee for the Big Brother format (TV Globo) sued TV SBT seeking an injunction and damages.
The defendants claimed that a reality show is no more than an idea, citing the lack of scripts. They claimed that the format bible was “in reality a simple manual that describes methods and procedures…; the idea of locking up people inside places and observing them is not new; … the work “1984” by George Orwell deals with this theme…”.
However, the Court heard expert academic opinion that; “[a] Television programme format, in the sense employed by the television business media, is a much wider concept that does not only include the central idea of the programme but also encompasses an extensive group of technical, artistic, economical, business… information. The format of television programmes is not just the idea of the programme, it is the idea and much more.”
The Court found that the Big Brother format enjoyed copyright protection under the Brazilian law of copyright, and noted that Brazil was a signatory to the Berne Convention. It observed that the format “is not limited to spying [on] people locked up in a house for a certain period of time;.it contemplates a programme with a beginning, middle and end, with meticulous description, not only of the atmosphere in which the people will live for a certain period of time but also the places where cameras are positioned. The format consists of details such as the use of microphones tied to the participants’ bodies, linked 24 hours a day, music styles, the form through which the participants will have contact with the external world, activities, among others. The images and audio situations captured for hundreds of thousands of people through the daily inserts in the programming of the television services and through the Internet with the consequent commercial exploitation is also a unique characteristic of the format.”
The judge did not spare the defendants, stating that; “the whopping.similarity between both programmes does not stem from chance, but from a badly disguised and rude copy of the format of the programme Big Brother”. The Court made awards of damages to Endemol of approximately ,000, and to their Brazilian licensees of over llion.
Television formats have now been traded round the world for over 50 years. The judgement of the privy council in Green v Broadcast Corporation of New Zealand (1989) which 15 years ago rejected a claim in copyright over the “Opportunity Knocks” format does not reflect either modern industry practice or the view taken by Courts where this issue has been tested in the 21st century. If the legislature does not step in, format protection in this country will surely come when the right set of facts is presented to the Courts.
Jonathan Coad, Solicitor
This update is e Simkins Partnership. 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. See the Simkins website at http://www.simkins.com
Green v Broadcasting Corporation of New Zealand (1989) RPC 700
Miles v ITV Network (2004) Law Updates May 2004
CBC v ABC (2003) Law Updates January 2003