Television formats can be big business worldwide. Unfortunately, there isn’t such a thing as a “format right” under English law. However it would seem the TV format industry is happy for us to believe otherwise, TV formats are vulnerable, in legal terms, to being “copied”. Regardless of this aspect, there is no “generic” TV format industry per se, and perhaps the lack of mainstream copycat formats is a result of non-legal, industrial factors.
Series 5 of the Great British Bake Off may have recently finished, however it is nowhere near the end for the worldwide commercial exploitation of this format for the BBC. That is to say, this “format” has been licensed throughout the world, where the BBC receives substantial license fees (through BBC worldwide- the commercial division). Television companies’ abilities in licensing formats such as these on a global scale depends largely on whether the content-owners can lay claims to sufficient intellectual property rights to protect such content.
Intrinsically there is no “format right” under English law. Rather, those attempting to protect format rights have to look for more generic intellectual property rights, such as; copyright, trademarks or design rights. These “IP rights” are typically bundled together with a range of other, technically non-IP rights, for example know-how and confidential information. Basic contract law could also add useful protection. These elements are explained in brief below:
Copyright and designs
Copyright cannot be used to protect the “idea” of the show. Instead, the protection applies more to the manner in which the idea is expressed and only in respect of certain categories of original “works”, including graphical works, music or literary works. To guarantee maximum protection in terms of copyright, a bible should be created for the format recording as many details as possible e.g. scripts, set designs, floor plans, logos, costumes, theme tunes, jingles etc. Additionally registered or unregistered design law, were relevant, could be used to add another layer of protection.
A TV show title can be registered as a trademark. “The Great British Bake Off” is a UK registered trademark (no. 2557737) owned by Love Productions Limited for example.
There are laws restraining “unfair competition” in some territories, in some ways similar to passing off in UK law. These laws can, depending on the facts protect a format from being used by another third party.
Upon sharing new and possibly lucrative format ideas, it is the responsibility of the developers to ensure any pitches are carried out under a confidentiality agreement. Although, these agreements can be hard to enforce (because it can be hard to prove a breach of confidentiality has taken place), that being said having an agreement in place could discourage bad behaviour.
Contract and know-how
Contract law can be used in order to prevent individuals from participating, and sharing know-how with other rival copycat shows. Having the ability to tie a particular individual (obviously depending on who this is), could prove a useful method of preventing a copycat show from establishing itself.
Pop Idol v X Factor – battle of the formats
Pop Idol was in fact the first television talent-spotting competition, along with it’s sister show “American Idol” this format has been licensed worldwide. Yet, in the UK Pop Idol was toppled by X Factor developed by Simon Cowell. As a result a legal claim was brought by the owners of Pop Idol against X Factor. The case was settled out of court with Simon Fuller from Pop Idol made a join partner of X Factor and Simon Cowell tied into a judging position in American Idol for another 5 years.
Unfortunate or not, there has not been a thorough examination of TV format rights in the English Courts. Some might put forward a Privy Council case form 1989 (Green V Broadcasting Corporation of New Zealand), where Hughie Green sought to establish a format right for the concept behind his programme, Opportunity Knocks. In this case the Privy Council stated there was no such thing as a “format right” under English law. However, the amount of detail presented to the court in this instance wasn’t substantial which deemed it unworthy of a comprehensive analysis of the law.
From a legal perspective it’s a pity that the Pop Idol V X Factor case didn’t go to trial because although X Factor claimed the format was “different”, it can be clearly seen there are significant similarities. However it remains true that UK IP laws aren’t well enough suited to protecting TV format. Whilst several various IP rights might well be enough to claim a certain format, it is probable an English court would’ve been reluctant to restrain a competing format sufficiently differentiated (e.g. different name, feel etc.)
The UK TV industry has developed an important worldwide commodity: TV formats. Such companies aren’t likely to admit freely that format rights are not built upon anything other than rock-solid legal foundations. Even so, the reality of the situation is that such formats are most likely going to prove difficult to protect against a well-thought out and differentiated copycat show.
Luckily enough for the UK TV format industry the current structure of the TV industry acts as another barrier in competing format coming to market. As long as channels such as BBC One and ITV 1 continue to be gatekeepers and key-holders for establishing a nationwide and later, worldwide success, the route to market for potential competition is probably to remain closed. One must consider, would the BBC, fresh from its latest baking windfall be interested in commissioning a rival bake-off or any other show which could pose a threat to one of its other established formats? Would they even wish to upset the industry by copying another market-leading format, in full knowledge that this would toss the worldwide licensing model into jeopardy? I don’t think so.
If you are looking for expert IP solicitors and legal advice visit Waterfront Solicitors based in London SE1.