Copyright started out 300 years ago as a protection for the printers of books and is a set of exclusive rights granted to the author or creator of an original work. It is however a fundamental principle of copyright law that it does not protect ideas – only their expression. This has presented legal systems worldwide with the challenge of deciding at what point inspiration (the reworking of an idea) ends and plagiarism (the appropriation of the expression of an idea) begins.
This challenge comes from the derivative nature of all creative works. Musicians, fine artists, authors, architects etc are all inspired by the work of their predecessors. Judge Loretta Preska, in the transatlantic battle over the ownership of I’m a Celebrity… Get Me Out of Here! said, “The evolution of TV shows… is a continuous process involving borrowing liberally from what has gone before”. ITV won that case on both sides of the Atlantic because it was proved that their format was original.
The reason why television formats focus the minds of lawyers so acutely is because of the unique challenges which they present. Somehow, the law of copyright has had to accommodate Big Brother, which essentially involves gathering a bunch of people together, putting them in a house filled with microphones and cameras, and editing and broadcasting what then happens. It has however been licensed for many millions of dollars worldwide, and recognised in a number of jurisdictions as qualifying for the precious monopoly accorded to copyrighted works.
The same applies to the phenomenally successful format The Only Way is Essex. Lime Pictures (the fortunate owner) has reportedly been negotiating sales of the format to the US. It has (less fortunately) also just been made the subject of a format rights claim in the UK by an individual who claims that the format was created by him. This is perhaps unsurprising given the fact that the real value of the format kicks in not as it plays out in its own territory, but as the owners licence its use abroad, at which point it literally becomes a licence to print money.
The wind is very much blowing in favour of format protection worldwide, with important decisions in 2011 in Brazil and France. In Brazil the Court of Appeal upheld the 2003 decision which accorded copyright status to Big Brother. A Brazilian Court also allowed a claim by Fremantle Media about its …Got Talent format and a Paris Court upheld another Big Brother claim on behalf of Endemol.
This also teaches the market that the key to format protection is in sending out signals that you will take seriously the business of protecting your IP; not only for your sake, but also for the sake of your licensees.
Jonathan Coad is a partner in the Media, Brands & Technology team at Lewis Silkin LLP.