The High Court of England and Wales decided on 19 October 2017 that a particular television format document did not qualify for copyright protection as a dramatic work as its contents were unclear and lacking in specifics. Copyright protection has been notoriously difficult to obtain in respect of TV formats and the case contains useful guidance on the way television formats should be recorded or expressed in order to stand a chance of being protected by copyright as dramatic works. The High Court also considered that the TV format document was too vague and insufficiently developed to be protected as confidential information (Banner Universal Motion Pictures Limited v Endemol Shine Group Limited & others).
- The decision acts as a warning for TV format developers that generalised commonplace game concepts, even if they are supported by specific examples, will likely fall short of the requirements for copyright protection as dramatic works.
- Television producers who acquire the rights to TV formats should ensure that TV format documentation is sufficiently detailed and is kept up-to-date as the resulting shows develop. It shows the importance of a format bible.
- To qualify for copyright protection as a dramatic work, contents of TV formats should be clear, specific and contain elements forming a coherent recognisable framework capable of being reproduced into a distinctive show.
- In order to increase chances of their formats being protected by copyright, developers/producers should think of including the following in their documentation:
- where the action is to take place;
- who the contestants should be and the selection process;
- the length of the programme;
- when the show should be aired;
- the source of the prizes (if any); and
- catchphrases, identified as such (it is not sufficient to simply list words or expressions).
- One of the major difficulties in establishing the infringement of copyright in formats for game shows is showing that what has been copied is the expression of ideas, rather than pure ideas themselves.
- While the High Court acknowledged the possibility for television formats (even if not fully developed) to be protected by the law of confidential information, information which is too vague, insufficiently developed and of a very general nature is unlikely to qualify for protection under the common law of confidential information.
- Claimants who have been unsuccessful in proceedings in one country should beware of starting similar proceedings against identical defendants elsewhere, as they may be estopped from doing so and such proceedings may amount to an abuse of process.