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Copyright Protection for TV Shows: Pointless or Going for Gold?

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

Television is a medium because anything well done is rare.

Fred Allen

Since its introduction, the television has become nothing less than a staple form of entertainment: it is the medium through which extraordinary stories have been brought to life in households around the world. This point is no less valid in light of the recent transition from television to online services such as Netflix and Hulu. With masterpieces like House of Cards and Stranger Things gracing the presence of computer screens, viewers are literally spoilt for choice.

It is therefore surprising how little intellectual property protection some television shows have received. For far too long, courts have remained uncertain as to the extent to which the concepts behind reality television, game shows and quiz shows – which thrive on their spontaneous and unexpected nature – are protected by law. It is for this reason that, the judgment of Snowden J in Banner Universal Motion Pictures v Endemol Shine Group [2017] is worthy of detailed consideration: as this article examines, it represents a long-overdue shift towards allowing copyright protection to subsist over the formats of such shows.

An Overview of Copyright Law

The Copyright Designs and Patents Act 1988 (CDPA 1988) affords copyright protection to a variety of different types of ‘work’, including creative works (literary, dramatic, musical, and artistic works) and entrepreneurial works (sound recordings, broadcasts, typographical works, and films).

In regards to television shows, any script used during the show may be protected as a literary work. This – pursuant to Section 16 of the CDPA 1988 – guarantees its writer access to legal remedies in the event of another person attempting to, amongst other things, substantially copy what is contained within the wording of that script. This, however, raises problems for shows that have no scripts: game shows, for example, rely heavily on the spontaneous input of contestants, and thus receive no literary copyright protection for what occurs during the show.

For decades, production companies have argued that such shows should be capable of classification as ‘dramatic works’. The success of this argument was initially limited: the concept of a ‘dramatic work’ is not defined in statute, except to the extent that Section 3 of the CDPA 1988, rather unhelpfully, provides that it includes a work of ‘dance or mime’.

Thankfully, Nourse LJ in Norowzian v Arks Limited [1999] was able to provide some clarity to this matter by finding that ‘dramatic work’ should be given its natural and ordinary meaning. As a result, ‘dramatic work’ is now taken to refer to:

[A] work of action, with or without words or music, which is capable of being performed before an audience.

Nonetheless, a further definitional hurdle must be overcome by claimants. In addition, the dramatic work, as it falls under Section 1(1)(a) of the CDPA 1988, must have been ‘original’. The test for this has been altered in recent years: English courts in cases like University of London Press v University Tutorial Press [1916] 2 Ch 601 and Ladbroke v William Hill [1964] 1 All ER 465 have traditionally required that the author applied ‘more than trivial labour, skill and judgment’ in creating the work.

However, recently, the Court of Appeal in SAS Institute Inc. v World Programming [2013] adopted the view of the European Court of Justice in Infopaq International v Danske Dagblades [2009] by requiring that the work is ‘an expression of the author’s own intellectual creation’. This will be achieved, as held in Football Dataco v Yahoo! [2012], where the author has stamped the work with their personal touch by making free and creative choices.

The Green Hills of New Zealand

In order to fully appreciate the judgment in Banner Universal Motion Pictures v Endemol Shine Group [2017], consideration must first be given to the findings of the New Zealand Court of Appeal in Green v Broadcasting Corporation of New Zealand [1998] – and the Privy Council’s subsequent analysis of the same case in Green v Broadcasting Corporation of New Zealand [1989] – with which much of Snowden J’s judgment was concerned. Though this case originates from New Zealand, and is thus outside the English jurisdiction, it has repeatedly been described as ‘the leading authority’ on the matter in question and therefore warrants consideration.

The case concerned the claim of entertainer Hughie Green that the format of the television talent show Opportunity Knocks constituted both a literary work and a dramatic work under copyright law. In particular, the claim concerned several recurring features in every episode of the show, such as the use of catchphrases, the use of sponsors to introduce the acts, and the determining of the winners through calculating the volume of applause with a ‘clapometer’.

Both of Green’s claims failed. After quickly rejecting literary work status due to a lack of general scripts and the other documents being ‘wholly unclear’ as to what they contained, both courts gave the matter of whether the show constituted a dramatic work more detailed discussion.

The New Zealand Court of Appeal

In the New Zealand Court of Appeal’s decision in Green v Broadcasting Corporation of New Zealand [1998], Somers J held that the existing scripts were not dramatic works because they were ‘no more than a general scheme for a proposed entertainment’ and could not be acted or performed. Casey J stated he had ‘strong reservations’ about whether protection could exist for a ‘basic concept underlying a series of changing dramatic works’; in his view, it was  difficult on the facts to see ‘in what way the underlying idea has been distilled out and translated into an expression thereof in a material form sufficiently identifiable to be copied’.

On the other hand, in his dissent, Gallen J argued that copyright could exist in a television format if:

[T]he combination of material upon which the person seeking protection relies has a recognisable framework or structure and that framework is such as to impose a share upon the other constituent parts of the show produced within it.

Gallen J subsequently held that having sponsors introduce contestants and the clapometer determine winners, while not individually ‘sufficient … to bring [the programme] within the criteria necessary for protection’, constituted, when combined, a ‘recognisable repeated structure … which imposed some form upon the contestant’s material’. For this reason, Gallen J believed that the format of the show was deserving of copyright protection.

Privy Council

Green’s appeal to the Privy Council was denied in Green v Broadcasting Corporation of New Zealand [1989]. Lord Bridge rejected Gallen J’s proposal that certain features could be isolated from other elements of the show, and consequently be identified as an ‘original dramatic work’. In addition, he held that these features lacked the ‘sufficient unity’ required by dramatic works ‘to be capable of performance’: beyond their use as accessories in the ‘presentation of some other dramatic or musical performance’, they were deemed wholly unrelated to one another.

Banner Universal Motion Pictures v Endemol Shine Group

Facts of the case

Banner Universal Motion Pictures v Endemol Shine Group [2017] concerned the proposal for the show Minute Winner, originally devised in 2003 by Derek Banner, founder of Banner Universal Motion Pictures (‘BUMP’). The concept behind the show was hardly revolutionary: a host would simply approach random people in public and give them ‘one minute to win something’ through location-based challenges. For example, a customer in a clothes shop might be challenged to choose an entire outfit off the rack and then try it on in a dressing room within a minute – if successful, they would win the clothes they were wearing.

Banner, following a meeting between himself and representatives of the Swedish television production company ‘Friday TV’, had sent the latter an unsolicited email containing proposals for 10 television shows, one of which was Minute Winner. Information detailing the format of Minute Winner within this document consisted of the following summarised pitch:

MINUTE WINNER

Mini-format Game show

Daily or weekly show.

Or short one minute between main programs.

Morning, Evening or Afternoon program.

One minute, or 30 minutes with several winnings.

In addition to providing examples of the types of challenges contestants on the show would undertake, the following details were also provided in the document:

SYNOPSIS

Minute Winner is a television program in which people are given one minute to win something.

WHERE?

The program takes place in a studio (and in location: street, shopping mall or unexpected at people’s homes). The program is cheaper to produce on location, as it only requires a cameraman, soundman, a host and a stopwatch

PRIZES

The prizes are sponsored by firms/companies in exchange with advertisements during the program.

WHEN CAN THE PROGRAM BE SHOWN?

The program can be shown daily (optional) as a one-minute fill in, before or after a main program. Minute Winner can also be shown either as a morning program, afternoon program or evening access prime time program.

Nothing came of this pitch. However, several years later, Banner became aware of the Danish version of the NBC show Minute to Win It, which had been licensed by Friday TV and produced in many different countries around the world. After multiple unsuccessful attempts by BUMP to pursue action for infringement in the Swedish courts, Mr Banner turned his hopes towards the English legal system, commencing a claim in the High Court in May 2016.

Snowden J’s judgment

Banner argued that copyright subsisted in the document in which the proposal for Minute Winner was contained. He alleged that it constituted a dramatic work within the meanings of Section 1(1)(a) and Section 3(1) of the CDPA 1988. The issue underpinning Banner Universal Motion Pictures v Endemol Shine Group [2017] was therefore whether the ‘format of a television game show or quiz show’, as opposed to recordings of that show, is ‘separately capable of being protected by the law of copyright’.

Having considered the judgments of the Court of Appeal and Privy Council in Green v Broadcasting Corporation of New Zealand [1989], Snowden J began his analysis by accepting the premise that the format of a television game show or quiz show could be the subject of copyright protection as a dramatic work ‘if it contains a sufficient record of how the show is to be presented’. He reached this conclusion despite acknowledging that a genuine game show or quiz show, by definition, requires that the ‘playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance’.

Though Snowden J refused to provide precise conditions to be satisfied before a television format can be protected as a dramatic work, he noted that Green v Broadcasting Corporation of New Zealand [1989] could be interpreted as requiring two overarching aspects to be met:

  • There must be a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and
  • 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.

Applying this approach, Snowden J found ‘no realistic prospect’ of the claimant persuading a court that the content of the Minute Winner document qualified for copyright protection. He felt that many of the features of the show were ‘commonplace and indistinguishable from the features of many other games shows’. In addition, Snowden J noted that the Minute Winner document was very unclear and lacking in specifics; for example, it failed to identify or prescribe:

[A]nything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form.

Comment

Though the claimant was not successful in this particular case, the judgment of Snowden J in Banner Universal Motion Pictures v Endemol Shine Group [2017] is significant: the court explicitly recognised that the format of a television show, if the above two-step test is satisfied, may qualify as a dramatic work and receive copyright protection.

Interestingly, one consequence of Snowden J’s judgment may have been the partial formulation of a roadmap for producers and showrunners to follow in order to achieve the status of ‘dramatic work’. In rejecting BUMP’s claim, the judge gave various reasons as to why Minute Winner could not be protected. It is arguable that a combination of the inverse of these failures could provide future claimants with a reasonable chance of achieving protection. In this case, producers would do well to have their show’s ‘format bible’ – the document containing matters such as details of the show’s set design, activities, methods for choosing participants, and catchphrases – include detailed information on the following matters:

  • The exact proposed location of the show, i.e. shot on location or in a studio;
  • Who the contestants of the show will be and/or how they are to be identified and approached;
  • The exact type of tasks contestants would undertake – the Minute Winner document gave four examples of tasks, but these were ‘merely given as examples’ and the key feature (that the tasks were to be performed within a minute) was not included in the synopsis;
  • The length of the programme;
  • How often the programme would be aired; and
  • The source of any prizes successful contestants would be awarded – the Minute Winner document merely stated the prizes would be supplied by ‘sponsors’, which was insufficient.

Comparing the pitch for Minute Winner with the above criteria, it is evident why the format for Minute Winner was not protected. A mere uncertain skeleton of a concept was provided within the Minute Winner document, containing only vague proposals and unremarkable ideas. The judgment in Banner Universal Motion Pictures v Endemol Shine Group [2017], however, should allow future producers to distinguish their work from that of Mr Banner’s, hopefully resulting in more findings of copyright protection.

Conclusion

The judgment of Snowden J in Banner Universal Motion Pictures v Endemol Shine Group [2017] confirms the suspicions of many production companies in regards to the value of format bibles: they can provide the level of expression necessary in order to require copyright protection in the original idea for a show.

As demonstrated by the above judgment, however, it seems such documents will be held to a rather high standard in terms of clarity and detail. Indeed, as Peter Byrd of Charles Russell Speechlys has commented, it is likely that Snowden J’s criteria represents only the ‘minimum requirements’ expected to be met.

It is probable the judgment in Banner Universal Motion Pictures v Endemol Shine Group [2017] will be met with praise: it represents a welcome movement away from the restrictive and highly-criticised approach of Green v Broadcasting Corporation of New Zealand [1989], which, as argued by Ute Klement, failed to recognise the creative input required by television shows and thus did not provide sufficient incentives for producers to create new work.

However, due to Snowden J’s refusal to elaborate in more detail on the exact requirements to be met for format bibles to be classified as dramatic works, it seems likely this matter will receive further consideration by the Court of Appeal or Supreme Court at some point in the near future. Ideally, they will align with and expand upon the judgment of Snowden J in Banner Universal Motion Pictures v Endemol Shine Group [2017] – whether they will, though, remains to be seen.

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Tagged: IP, Intellectual Property, Media, Technology

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