Legal
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| A. |
WHY SHOULD YOU IMPLEMENT SAFEGUARDS NOW?
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| 1. |
It is worth noting that the current success rate in legal action brought against perceived format plagiarism on the grounds of copyright infringement is not good. In fact every case that has gone to trial on this basis has been lost. Whilst this does not mean that there have not been successful legal actions that have resulted in a settlement, it does bring home the importance of implementing systems to protect your format early on in its development. This is especially so given that your commercial strength to exploit your format is directly proportional to your capacity to protect since your format will stand out as one of a kind. In addition, the better able you are to protect it, the stronger your ability to bring pressure on others who may be trying to “steal” it.
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| 2. |
Simkins advised Granada Media Group, owners of "I'm A Celebrity Get Me Out Of Here", on a claim that it infringed the copyright in "Survivor". Proceedings were brought in New York, and the claim failed. The judge clearly stated that “the evolution of TV shows….is a continual process involving borrowing liberally from what has gone before”. Although this comment was made in a US case it demonstrates the difficulty that a UK court would face in drawing a line between what would be considered “borrowing liberally” and what would amount to breach of copyright. Therefore, the strongest position that you can be in is to present the court with evidence that you have taken clear and consistent steps to protect your format within the existing intellectual property legislation of copyright, confidentiality and passing off.
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| B. |
PRACTICAL ADVICE
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| 1. |
Put it in Writing
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It is astonishing how many ideas start life as a few spoken words, the orator of which goes un-noted, and then feels hard done by a year or so down the line. Put your idea in writing and develop all aspects of it as much as possible before giving, or showing it, to anyone. And put your copyright notice – © followed by your name, or the name of the company, followed by the year – on each page of the document.
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| 2. |
Date and Identify
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Whether it is conception, modification, updating or adding ideas, make sure that the date, author and those responsible for the ideas being recorded (and which idea should be attributed to who) are noted every time.
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| 3. |
Trade Mark It
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Think seriously about registering the title of the format as a registered trademark. Be warned though that you will need to register it in each of the territories in which you wish to protect it which could prove expensive.
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| 4. |
Register it
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In addition you can deposit and register a copy of the format with an association such as FRAPA with the date of receipt confirmed. We provide a similar service at Simkins whereby we keep a log of the date that we received the copy of the format. Although this will not originate any copyright protection, if there is a dispute it provides evidence of the date of the concept of the idea.
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| 5. |
Paint a Picture
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For game shows, chat shows and reality shows in particular, it is often the visual props and set that provide the attraction. For example, the set of “Who Wants to Be a Millionaire” which is reproduced the world over and assists in creating the tension of the amphitheatre or the unmistakeable “Countdown” clock. These should be reduced to a detailed illustration (if possible 3D) and include as many original elements to the design as possible to try to protect the look of the show as an artistic work under copyright.
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| 6. |
Create a Paper or E-Trail
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The creation of a format can be a very long and complicated process. Often teams of individuals set about developing the format to fit, for example network or budgetary requirements. Again, detailed and exact specification of the elements of the format during the entire development process should be recorded for the best possible protection.
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| 7. |
Make It
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If the necessary funds exist, make a pilot for the programme incorporating all the essential elements of the theme and design as detailed above.
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| 8. |
Keep it Confidential
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If you can, request that anyone who is to receive the format proposal signs a non-disclosure or confidentiality agreement before viewing the idea. If this proves too impractical or awkward, make it clear at every opportunity that the information they are receiving is confidential and is not to be used without your authorisation. This will assist you in proving breach of confidentiality should you need to. Mark all correspondence about the project "Confidential".
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| 9. |
Retain It
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It is not unusual for formats to continue to be developed even when they have aired successfully in one territory. This may be because of cultural differences between territories for example or because the relevant television network in another territory demands it. We are even aware of a format that went from an idea in the UK to production in the US so quickly (within 4 weeks) that it did not have an ending. The ending was going to be dreamt up by any one or combination of the format creators, the producers, the production team or even the network; the UK owners were not sure which. Although this is an extreme example, it is imperative that whoever adds an element to your format assigns that element back to you so that you have the right to exploit the format in its entirety.
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| 10. |
Domain Name It
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If you have thought of a snappy title for your new programme, then register it as a domain name in every territory in which you want to exploit it. Don’t forget “.com” and “co.uk”.
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| 11. |
Licence It
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A format contract will provide better protection than the laws of intellectual property although this will only be binding between the contracting parties, not a third party. However, more importantly, the contract will give the buyer access to “know how”, that is the knowledge and expertise required to produce the programme.
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| 12. |
Make Your Team Exclusive
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Often it is the know-how that buyers of formats are after and they will pay more to work with the original team. It is therefore advisable to sign exclusive agreements with the people who can provide that know-how.
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| 13. |
Keep Your House in Good Order
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keep a format bible containing as much detail and know how as possible. In fact the kind of detail you should consider including is highlighted in the next point.
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| 14. |
Details, Details, Details
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The more information about the programme that you can reduce to written form, the greater your chances of protecting the format as a literary work. Give a clear and detailed description of the show and its constituent elements during the entire development process. Two papers from the Department of Trade and Industry in 1994 and 1996 suggested that the following information would be useful:-
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the title;
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sample scripts;
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principal characters, names, details of character, suitable candidates to play them;
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the set, setting or settings;
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the principal stage properties;
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the role of the presenter (particularly important in light of the US judge's ruling in the case mentioned above; she considered that the presenters moulded the “concept” and “feel” of the programmes. She considered that the presenter on Survivor was relentlessly serious whilst Ant and Dec on Celebrity were “nothing if not funny”;
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any catchphrases that are intended to be used;
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the role of any participating professionals (e.g. psychologists, fitness experts, survival experts and a description of their role e.g. will they be seen on screen or will they just be commenting? If you have anybody suitable in mind note it);
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the role of any participating members of the public;
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the role of any celebrities;
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the notional “type” of celebrity e.g. political, mother figure, lothario;
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the order in which different parts or sections of the programmes are to run.
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| C. |
GOOD HOUSEKEEPING - DO’S AND DON’TS
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| 1. |
DO
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Create a directory that can be accessed by all the individuals relevant to the programme.
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Structure the directory with relevant sub directories e.g. Format; Location; Games; Health & Safety; Scripts; Design etc.
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Save all the ideas regarding the format into the communal directory.
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Save/archive all emails referring to the format or programme, however tenuous the link, in a central directory.
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Date and identify the author of every single document.
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Record minutes of all format/“ideas” meetings and where possible make a note of how these have informed the development of the format.
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Number and date the format documents at every single stage of development.
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Track the changes to the original format and keep a record of what has changed, when it changed, why it changed and who was responsible.
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Keep a record whether an idea to modify an idea has come from an internal or external (e.g. a network department) source.
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Keep an orderly hard copy file of all format proposals that have been submitted noting to whom and when; check they are dated correctly and that credit has been given.
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Delete any emails that are relevant to, refer to or could in any way be related to the format.
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Draw too many comparisons between your new format idea and formats that are already well known and established. Although it is useful to give potential purchasers an idea as to what type of programme to expect, it may aid an action against you for passing off. If you need to do it draw comparisons with as many programmes as possible rather than just one or two.
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Save new formats over old. Every time the document is amended (with the exception of e.g. spelling and grammar amendments) it should be given a new version number, dated and the author identified.
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Nigel Bennett
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