TV formats are the real 'Minute Winner': High Court confirms TV formats can be protected as artistic works

In a recent judgment, the High Court has provided helpful clarification on a particularly grey area of IP law by confirming that TV formats can be protected by copyright as artistic works.

In the case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600, Snowden J confirmed that copyright protection is available for TV formats as artistic works as long as they contain a sufficient number of distinguishing features connected together in a coherent framework to enable the TV show to be reproduced in recognisable form.

The relevant law

The law relating to TV formats has been somewhat uncertain since the principle case in this area, Green v Broadcasting Corporation of New Zealand [1989] UKPC 26. In that case a claim that the format of the TV talent show 'Opportunity Knocks' could be protected as a dramatic work failed.  Under copyright law, a 'dramatic work' must be "capable of being performed" – this was a stumbling block which proved too high in the Green case with the majority of judges finding that there wasn't sufficient certainty or unity in the show's format to make it capable of being performed. A number of cases since the Green decision have also failed to clear up the position as to whether, in principle, TV formats can be protected as artistic works.

Background

This case concerned an action brought by Banner Universal Motion Pictures Ltd ('BUMP') for copyright infringement which it claimed subsisted in the TV format for its game show 'Minute Winner'.

BUMP alleged that, after pitching the concept for 'Minute Winner' to one of the Defendants (the Swedish TV production company, Friday TV) in 2005, Friday TV (along with the other Defendants) went on to copy the format of 'Minute Winner' by developing a similar gameshow format 'Minute to Win It'. 'Minute to Win It' first aired in the US in 2010 and was subsequently aired in the UK on ITV2 in 2011. It has since been sold in over 70 countries worldwide.

The concept for the Minute Winner game show involved members of the public being given exactly one minute to try and win a prize. The show format was set out in a short document ('the Minute Winner Document') which described such features of the show as: a brief synopsis; where the program was to be filmed; and the prizes that could be won. BUMP claimed that copyright subsisted in the Minute Winner Document as an artistic work and that the Defendants had infringed this copyright by producing 'Minute to Win It' which, BUMP alleged, involved a very similar format.

Decision

In his judgment, Snowden J found that: "it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work". This is despite the fact that, due to their nature, such shows contain elements of spontaneity and events typically change from episode to episode.

Snowden J also went on to consider the minimum requirements that must be met in order for copyright protection to subsist in a TV format as an artistic work, these are:

(i) there must be a number of clearly identified features which, taken together, distinguish the TV show from others of a similar type; and

(ii) those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in  recognisable form.

On the facts of the current case however, Snowden J found that copyright did not subsist in BUMP's Minute Winner Document as it "did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in a recognisable form". Snowden J highlighted that the performance of a task against the clock to win a prize was a common feature of games shows and that the Minute Winner Document did not specify key information such as: the type of one minute tasks; who the contestants should be; or the length of the program.

What's more, even if BUMP could establish copyright in its Minute Winner Document, Snowden J found that the format described in the Minute Winner Document and that used in Minute to Win It were "different in every material respect" - there was no similarity beyond the fact that they both involve games played against the clock for one minute.

Comment

The decision provides some much needed clarity and guidance around the protection of TV formats under English copyright law. It is now clear that in order to attract copyright protection as an artistic work, TV formats must contain distinctive features and these must be joined together in a coherent framework enabling the show to be reproduced in a recognisable form.

In practice this means that production companies should document as much information as possible about the format of their show in order to demonstrate that it has a coherent framework. We would recommend collating a production bible with comprehensive details of all aspects of the show's concept including any scripts, catch-phrases, set designs, floor plans, costumes, logos, theme tunes and other relevant aspects relating to the look and feel of the show.  The risk of unauthorised disclosure and copying should be mitigated by consistent use of non-disclosure agreements and only disclosing or sharing the contents of any production bible on a strictly confidential basis.