E&O Insurance - How much of your production's format is copyrightable?
By: Doran S. Chandler - Chandler Fogden Aldous Law Corporation
Whenever a producer or writer dreams up a new idea for a television show, it doesn't take long for them to start worrying about someone pinching it and beating them to the punch. This is especially true in the case of news programs, game shows, and other reality based productions. Such productions are relatively inexpensive to produce and consist mainly of material with a questionable footing in copyright. This makes it accessible to a large number of producers and difficult to pitch and develop without tipping off competitors about a potential new trend.
A somewhat odd corollary to this is that the value of television formats has grown exponentially in recent years with the widespread licensing of formats to broadcasters or production companies in foreign markets. As a result, many producers want to know what they can borrow from existing programs, and whether they can protect what they have created. Only one notable Canadian case, Hutton v. Canadian Broadcasting Corporation, sheds some light on the issue.
In Hutton, the Alberta courts considered whether the format of a music video magazine show could be copyrighted. The courts held that concepts and devices generally present in shows of the same genre were not protect-able, such as the mood of the hosts, the presentation of biographical materials, interviews, and the use of TV monitors in the set design. The courts also considered the use of infinity shots, bumpers and teasers to commercials, the use of montages, and the use of transitions like dissolves and back-to-back video playbacks, finding that these elements could not in themselves be protected. One characteristic the trial court found protect-able at trial were elements of "dramatic conceit" in the programs, or the entertainment fictions used to create drama in each program. The trial judge ultimately found that the plaintiff's show, Star Charts, was not a dramatic work within s.2 of the Copyright Act and thus not capable of being copyrighted. On Appeal, the Alberta court de-emphasized the idea that dramatic conceit was protect-able and held simply that the works were not qualitatively similar and did not have any causal connection between them.
The end result of Hutton is that, while we have some idea about what Canadian courts will consider when evaluating a format, we don't really have a clear guideline for what is required to achieve a protect-able format. Adding to the uncertainty is that different standards of protection have emerged in other jurisdictions. In one case considering the copyright-ability of the format for Opportunity Knocks, a prominent UK copyright judge held that the elements of a "dramatic format" were too uncertain for copyright protection.
Meanwhile, courts in Holland and Brazil have granted protection to the Survivor and Big Brother formats, respectively, finding that copyright can subsist in the meticulous combination of individually unprotect-able elements in a format. Together, these decisions leave producers intending to rely on a specific format on shaky ground. Given that the legal right to use or to keep others from using a given format is unpredictable at best, it is a good idea to take some precautions when developing a show. One important security measure is to pitch your concept formally in conference using confidentiality agreements. Another useful precaution is to document and distinguish your concept with as much detail as possible, including the use of specific music, timing, camera angles and set design.
Registering distinctive slogans and catch phrases with the trademark office can offer protection, as can registering your detailed synopsis with the copyright office. Lastly, advertise your production as aggressively as possible because a strong market presence will always attract more copyright protection than anonymity.
How much of your film is copyright-able?