What you need to know
A UK court has ruled that there is potential for a television quiz or game show format to be the subject of copyright protection as a dramatic work, even though such shows inherently contain elements of spontaneity.
What you need to do
If you want your television format to qualify for copyright protection in the UK, you should:
- make sure the relevant documentation contains a number of clearly identified features which, taken together, distinguish it from others of a similar type; and
- make sure those features are connected in a coherent framework that allows the show to be reproduced in recognisable form.
Background
The High Court of England and Wales has, in a case management hearing, dismissed a case brought by the creator of a game show “format”.
The claimant, Banner Universal Motion Pictures Limited (BUMP), is an English corporation set up by Danish citizen, Derek Banner.
Development of 'Minute Winner'
Mr Banner claimed that around 2003, he developed a format for a television show called Minute Winner, which he set out in a document. The document outlined the show’s synopsis, options of where it could be filmed, how contestants would be chosen, examples of games that could be played and prizes that could be won. The show would involve contestants chosen at random, who are given one minute to complete a task (eg find the key to unlock a car) and, if successful, win the object the subject of the game (in this example, the car).
At the end of the Minute Winner document was the following text:
“Concept created by Derek Banner/Bump Productions. Copyright 2003, all rights reserved. This format is protected under the international copyright law and intellectual property protection. It shall not be transmitted, exploited, copied, produced, used, disclosed or distributed, in part or in its entirety, without permission from its owner.”
Mr Banner claimed he outlined the concept of Minute Winner at a meeting in 2005, with principals of Friday TV. He says he asked the principals to sign a non-disclosure agreement. They declined, but he claims they acknowledged everything said or disclosed at the meeting would be confidential.
One of the principals gave evidence that Minute Winner was never discussed at the meeting, and his notes supported that claim.
Ten days after the meeting, Mr Banner sent the principals an unsolicited email saying “Nice speaking to you. Attached are 10 more of our new formats”. One of these was Minute Winner and attached to the email was a version of the Minute Winner document.
"Minute To Win It"
In 2009, Friday TV’s holding company was acquired by Shine Limited. The same year, Friday TV sold the idea for a new game show to Realand Productions LLC, part of the NBC Universal Group. In 2010, a show called Minute To Win It was first broadcast in the US. It was later broadcast in many different countries around the world, including a UK version in 2011.
Previous litigation
Mr Banner commenced the following suits in relation to the program:
- In 2012, in the Stockholm District Court, Mr Banner commenced proceedings against Friday TV, claiming infringement of the Swedish Trade Secrets Act. The case was dismissed, with the Court finding the Minute Winner concept had not been pitched at the 2005 meeting, and only in the subsequent email, and therefore not subject to the verbal confidentiality undertaking. It also held that the information conveyed to the principals was too general in nature and not detailed enough to be a “trade secret”. Mr Banner was ordered to pay Friday TV’s costs.
- Mr Banner applied to the Swedish Court of Appeal to appeal the District Court’s decision. The application was dismissed.
- Mr Banner applied to the Swedish Supreme Court to appeal the Court of Appeal’s decision. That application was also dismissed, and Mr Banner was again ordered to pay Friday TV’s costs.
- In 2014, Mr Banner requested the Stockholm District Court issue a summons against Friday TV and others alleging trade mark and copyright infringement. The Court refused the request.
Mr Banner had not paid any part of the costs ordered against him. He incorporated BUMP in 2015, and purported to assign his rights in relation to Minute Winner to BUMP. In 2016, BUMP commenced the case in England against Endemol Shine and others.
Copyright
BUMP claimed copyright in the Minute Winner document as an original dramatic work under the UK Copyright Designs and Patents Act 1998 (CDPA). The Minute Winner was never produced or broadcast as a television program.
Justice Snowden held that in assessing originality, the whole work must be considered, and an original work can include parts that are neither novel nor ingenious (Ladbroke v William Hill [1964] 1 WLR 273 at 273).
He also held that:
“… it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode.”
Justice Snowden did not decide on the precise conditions required for a television format to gain protection. However his Honour set out the following minimum conditions:
- a number of clearly identified features which, taken together, distinguish the show from others of a similar type; and
- those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
His Honour held that the Minute Winner document did not meet those requirements, because its contents were:
- very unclear and lacking in specifics; and
- even taken together, did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form.
Justice Snowden held that the show’s features, such as the title, the phrase “one minute to win”, and performing a task against the clock to win a prize, were “commonplace and indistinguishable from the features of many other game shows”.
Breach of confidence
BUMP’s claim for breach of confidence failed because the Court held that the Minute Winner document was too vague to qualify for protection as confidential information. His Honour also held that BUMP was estopped from bringing this claim by reason of the findings in, and outcome of, the Swedish proceedings.
Authors: Rachel Baker, Lawyer; and Lisa Ritson, Partner.
