Copyright and breach of confidence: format of television show

07 December 2017

Audrey Horton

Summary

The High Court has held that a documented format for a televised game show may qualify for copyright protection as a dramatic work, although it dismissed claims for copyright infringement, breach of confidence and passing off.

Background

The UK does not protect television formats as a separate legal right. The owner of the format must seek to protect it under intellectual property or other laws, such as copyright infringement, breach of confidence, passing off or breach of contract.

The New Zealand Privy Council held that there was no copyright in the details of the game show Opportunity Knocks (Green v New Zealand Broadcasting Corporation [1989] 2 All ER 1056).

The doctrine of res judicata provides that litigation raising issues that have, or could have, been decided in previous proceedings may be held to be an abuse of process. 

Facts

B developed an idea for a game show called Minute Winner in which members of the public would be chosen at random in a public place to try to perform a task within one minute to win a prize related to the task.

B met with a Swedish company, F, about a television format called Celebrity Birthday. B said that he discussed Minute Winner at that meeting on the understanding that F would keep it confidential. F denied that this format was discussed at that meeting and pointed out that it had refused to sign non-disclosure agreements at the meeting. 

B subsequently sent an unsolicited email to F attaching a synopsis of the Minute Winner format. F became part of E, and licensed the format for a new game show Minute to Win It to N. It was broadcast in the US and around the world. 

B sued F in Sweden for trade secrets, trade mark and copyright infringement.

The Swedish court dismissed the claims. It held that the information about Minute Winner disclosed by B did not constitute a trade secret, commenting that it was merely a relatively simple core idea for a programme format. B appealed. 
The Swedish appeal court dismissed the appeal. 

B then sued E, F and N in the UK, claiming that the creation and broadcast of Minute to Win It constituted copyright infringement, breach of confidence and passing off. B argued that the Minute Winner synopsis was a dramatic work.

Decision

The court gave summary judgment in favour of E, F and N.

There was no copyright in the synopsis and, in any event, E's programme was not sufficiently similar to infringe.

In principle the format of a television game or quiz show could enjoy copyright protection as a dramatic work, but here the contents were unclear and lacking in specificity, and did not identify or prescribe anything resembling a coherent framework or structure which could be relied on to reproduce a distinctive game show in recognisable form. Its features, such as the performance of a task against the clock to win a game or a prize, were commonplace and indistinguishable from the features of many other game shows. The synopsis did not prescribe the type of one-minute tasks that were required to be performed in any recognisable or repeatable structure. Even if the synopsis had qualified as a copyright work, E's programme would not have infringed it, since the two were different in every material respect.

The claim for breach of confidence was barred res judicata and was an abuse of process. The Swedish court had regarded the synopsis as lacking in sufficient detail and value to constitute a trade secret. English law relating to confidentiality was based on principles similar to those of Swedish law and so the Swedish and English claims were similar enough to give rise to estoppel. Even if there were no estoppel, the synopsis was not enough to found a claim for breach of confidence. B's unsolicited email attaching the synopsis was not sent under an obligation of confidence, since F refused to sign any non-disclosure agreement, and any oral confidentiality agreement only covered matters discussed in the meeting.

B's claim was an abuse of process since it arose out of the same facts as the Swedish action and was made through a newly incorporated English company to avoid paying the outstanding costs order in the Swedish proceedings.

B had no goodwill in the Minute Winner concept which had not been sold to anyone. The mention of it on B's website was no more than an advertisement. In any event the lack of similarity between it and E's show meant that there was no risk of misrepresentation.

Comment

Television format cases, of which there are comparatively few, have generally failed either on the ground that the format lacked enough concrete detail to be protectable or on the ground that the defendant's show was not similar enough. Due to the popularity and commercial value of reality, quiz and game shows, it is standard practice for production companies to create detailed bibles of format requirements prescribing elements such as set design, catchphrases, and procedures for choosing contestants and activities, to try to maximise the chance of the courts upholding them as copyright works.

This decision demonstrates the importance of ensuring that a new idea for a format show is disclosed only under a written confidentiality agreement, particularly where there are not sufficient details to qualify for copyright protection.

Case: Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd and others [2017] EWHC 2600 (Ch).

First published in the December 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers.  Subscription enquiries 020 7202 1200.

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