TV Format Rights: The Harsh Reality

August 10th, 2014

As we sit on our sofas, flicking through the channels and channels of cooking, dancing and property development programmes, we may think to ourselves… “Hold on a minute, wasn’t this ‘Celebrity Cooking in a Jungle on Ice’ programme on just a few moments ago on another channel?”

And we would be right. The TV listings are awash with programmes all slightly differing in format, all trying to get a slice of the ratings pie.   

The problem of where inspiration ends and plagiarism begins in TV format rights has been considered a number of times by the courts but unfortunately no specific protection has yet been given. In fact, there are currently no laws in the world that govern TV formats as Intellectual Property.   It is so difficult to define a television format that English legislators have always shied away from creating a legally enforceable ‘format right’ and any legislation protecting it may enable the media giants to gain a monopoly over the simple ideas.

Copyright may help but it will not protect an idea. Copyright protects the expression of ideas: for example, a play, a novel, a picture or a tune. If you have a great idea for a photograph, only the photo will be protected, not your creative thought. Likewise, a brilliant programme idea needs to be fully elaborated and set down if it is to be protected by copyright.

The landmark case on the matter is that of Green v NZ Broadcasting Corporation  [1989] in respect of the programme ‘Opportunity Knocks’.  Hughie Green claimed format rights in the show but the court held that there was no “format right”, at least in the manner claimed by Green.

The US judge who decided on the outcome of the transatlantic dispute over who owned ‘I’m a Celebrity … Get Me Out of Here’ observed, ‘the business of making TV programmes involves borrowing liberally from what has gone before’.

So why, despite this lack of judicial recognition, does the television industry still widely recognise and trade in format rights? Why would Channel 5 purchase the reality TV show ‘Big Brother’ for a staggering £100 million? Or FOX in the US buy the format for the basic talent elimination programme ‘Pop Idol’ for an unbelievable $2.5bn?

It seems that the industry is alive to the fact that this area of law is one of much development and as the legal basis for protecting format rights becomes better understood, their ‘owners’ can be increasingly confident that if they had to enforce their rights in court, they would be successful in doing so.

So it would seem that the best chance of protecting your TV format requires the same combination as any other form of intellectual property: diligence in recording the creative process and ensuring that your record keeping enables you to prove your methodology and chronology.