I’ve previously blogged about the difficulties faced when seeking to apply the principles of copyright subsistence to a TV format. Since that blog, the Courts have provided further clarification as to how such issues will be approached in future.
Banner Universal Motion Pictures Ltd v Endemol Shine Group Limited and others EWHC 2600 (Ch)
This case provides the authority for the proposition that, in principle at least, copyright can exist in a TV format.
Banner claimed that copyright subsisted in a written description for a TV game show, as a dramatic work. In other words, the claimant didn’t seek protection for the words written in the document per se, but rather the performance of the game show as described in that written document.
The Court held that it was at least arguable that a TV game show or quiz could be protected by copyright in this way. Notwithstanding this, the claim was summarily dismissed as having no reasonable prospect of succeeding.
In dismissing Banner’s claim, the Court held that the minimum requirements for such a claim were not met. To have been successful in establishing copyright Banner would have had to have shown that:
- There were a number of clearly identified features that, taken together, distinguished the show from others of a similar type.
- Those distinguishing features are connected with each other in a coherent framework which can be repeatedly replicated, so as to enable the show to be reproduced in a recognisable form.
On the facts, the Court held that the description for the show was unclear, lacking in specifics and further, that the features of the show as described were commonplace and indistinguishable from many other game shows.
The judgement in Banner will no doubt be welcomed in some corners of the entertainment industry. In fact, it is worth noting that the defendants in this case did not seek to persuade the Court that copyright could never subsist in the format of a TV show (as a TV show production company, Endemol may of course wish to claim copyright in a TV show format in future.)
The judgement does however emphasise that the hurdle for any potential claimant to overcome is a high one – there has to be a significant amount of detail in the work in which the TV format is recorded for copyright to subsist. Given that the purpose of copyright is to protect the way in which an idea is expressed, rather than the idea itself, the outcome of this case on the facts is not a surprising one.