Source : The Financial Times
As Simon Fuller and Simon Cowell prepare to slug it out in the courts over the alleged plagiarism of Pop Idol by Cowell's X Factor, both men would do
well to spare a thought about worms. Despite similar legal challenges around the world over a spate of reality television shows that claimants argue are as indistinguishable from each other as two garden worms, only one such lawsuit has actually succeeded.
Worms offer a revealing, if somewhat unlikely insight into the difficulties
in protecting and contesting television formats, having played a key role in the dismissal of one such challenge by a US district court judge. In a ruling last year, Judge Loretta Preska contrasted the tense, vomit-inducing worm-eating assignment faced by the contestants on Castaway Television Productions' Survivor with the comic element of the worm-eating antics in Granada Productions I'm a Celebrity... Get Me Out of Here!.
Rejecting an attempt by CBS, broadcaster of Survivor, to block ABC's plans
to air the rival show, she ruled: In Survivor, the unattractive black worms are set out in a tribal-looking Wheel of Fortune layout. In Celebrity, the unattractive looking white worm appears on a banquet table with fine linens and fine china adjacent to an absolutely delicious meal.
The spectacle of judges and lawyers watching reality TV shows more keenly than the couch potatoes they were intended for may seem surreal. But when
it comes to protecting TV formats from copycat programming, everything comes
down to this kind of detailed analysis. That is why so many lega challenges
fail. It is why copyright lawyers advise programme makers to express their
formats as meticulously as possible. And it is also why Fuller's camp believes it will win this time, despite the context of international lawlessness that governs TV formats - a context that raises questions as
to why broadcasters should bother paying for formats in the first place
instead of just ripping them off.
Ongoing spats include one between NBC and Fox over their respective boxing
reality TV shows The Contender and The Next Great Champ, and another between
the UK's RDF Media, producer of Wife Swap, and Fox's Trading Spouses.
TV shows have always borrowed from each other, but the reality TV genre has
become a valuable property given broadcasters desperate search for proven
yet locally-adaptable programming to compete in the multichannel age. But, while the resulting international trade in television formats is worth
hundreds of millions of pounds in licensing revenues, the supposed security
of ownership under-pinning that trade has been labelled largely illusory by the German-based Format Recognition and Protection Association (Frapa), an international mediation body.
Frapa was set up to resolve disputes out of court and help producers, broadcasters and judges around the world to better respect TV formats as unique intellectual properties. Under the present legal framework the business is generally run as a series of gentlemen's agreements, says David
Lyle, chairman of Frapa's steering committee and former president of FremantleMedia, North America. Sadly, many people don't act like gentlemen.
Small wonder then that as shows are adapted for local markets, the line between inspiration and imitation becomes at best blurred and at wors wiggly. Like a worm in fact.
The simple problem for producers is that the law deems a programme format to be an idea, and ideas are not covered by copyright laws. In the UK this precedent was set in 1989 when Hughie Green, the creator of Opportunity Knocks, unsuccessfully sued the Broadcasting Corporation of New Zealand
over what he believed to be a copycat show.
Since copyright law has only covered the expression of ideas, computer games
are often copyrighted on the basis of programming code rather than the actual concept. Television producers are therefore encouraged to express their formats in detailed literature, dubbed format bibles. Endemol UK, for example, has a 40-page format bible for Ready, Steady Cook that
details the studio layout, casting methods and camera.
What's identifiable, definable and defensible is the detail, explains Peter Bazalgette, chairman of Endemol UK.
However, too little detail in these bibles and the format is deemed a mere idea rather a piece of intellectual property. Too much detail and rip-offs become easy to produce with the help of the disclosed instruction manual and just enough tweaking to convince a judge that the shows are different.
The result, according to Charlie Parsons, Survivor¹s creator and Castaway's
chief executive, is that producers simply cannot know for certain whether
their format is protected by law or not. Even the punters know that two programmes are the same, Parsons says. But if you take it to a judge they don¹t watch it that way because they get involved in general legalistic arguments about copyright.
While Parsons calls for new legislation, other producers suggest all that
is needed is for the Opportunity Knocks precedent to be re-evaluated. We've come a long way since then, says Bazalgette. Videotape is the lingua franca and quite a lot of people would like to see the Opportunity Knocks case revisited.
However, despite the proliferation of disputes, no legal challenge has had
the financial backing or confidence to get as far up the legal system as
the 1989 case and hence the situation lamented by Parsons still holds sway
It's a very fast-moving industry, so if you want to set a new precedent by going all the way to the High Court, you will lose the opportunity to market
your format in the meantime and get first-mover advantage in other markets, explains Christopher Fey, Frapa¹s managing director and a copyright attorney.
The high courts in Brazil and Holland have now recognised TV formats as protectable under copyright law, with Endemol's Big Brother fighting off a challenge from Parsons in Holland and successfully challenging a copycat in
Those in Fuller's camp believe their dispute over X Factor will provide a
similar legal breakthrough for the UK. They certainly appear to have heeded
the importance of detail by preparing a writ that reads more like a set of technical stage instructions. In addition, they allege contractual as well as copyright breaches owing to the number of X Factor production staff who had also worked on Pop Idol and signed non-compete clauses.
Copyright and format in television have traditionally been incredibly
hard to prove or take ownership of. In this case, however, we believe the line has been crossed and there's a clear case of a number of breaches of
agreement, says one of Fuller¹s advisers. Originally there wasn't going
to be any action, but a number of influential people from independents and
from major broadcasters called in to say this is beyond a joke and someone has got to take a stand.
Cowell has branded the action totally ridiculous and FremantleMedia,which
bizarrely was the co-producer on Pop Idol, has insisted that the two shows are different formats. Industry insiders, although relishing the prospect of
a legal overhaul given the deep pockets and resolve of both men, admit the
key for Fuller will be the alleged breaches of contract rather than copyright.
But if copyright protection for TV formats remains so weak, why doesn't everyone copy them instead of buying them?
Bazalgette and other producers point out that offending broadcasters would risk becoming pariahs in an age when they constantly need access to new formats.
There's the peer pressure of the trade because most people are buyers and sellers of formats, says Jonathan Coad, partner at the Simkins Partnership who has defended Celebrity on behalf of Granada and ITV.
Also, often these things have quite a short shelf-life. Licensing a format bible enables you to make the programme straight away, whereas reverse engineering takes a long time, he adds.
In addition, he highlights the importance of obtaining behind-the-scenes
technical expertise as well as the basic concept. Ways of presenting an idea are part of whether it works or not. Fame Academy and Pop Idol were similar, but one worked and one didn't.
Therefore, while the present system may be imperfect, Bazalgette points
out that it does at least work, enabling a lucrative trade in TV formats.
Indeed, while the spat between Fuller and Cowell has increased the call
for more solid legal grounding for TV formats, some caution against upsetting
the present balance too far in favour of protection. TV lives from borrowing from what has gone before, explains Fey. The worst thing would be for a judge to make the wrong decision, such as granting a monopoly on chat shows.
© The Financial Times