Nobody doubts that TV format rights are where big money and prestige can be earned, but it can also be a legal minefield for those who jump in unprepared. There is no statutory protection for format rights in law, so it’s up to format creators to protect themselves and their work as thoroughly as possible. Here, Jonathan Coad of Lewis Silkin offers his checklist of ten essential steps that will keep your ideas safe during their journey to the screen.
1. Knowledge of your rights
Copyright can only protect the expression of an idea, not the idea itself. A work must be immediately identifiable as distinct and original in order to be protected, though this can lead to grey areas. Just look at the proliferation of superficially different reality formats.
The law of confidence, meanwhile, can protect ideas put forward in circumstances where confidentiality should reasonably be expected – such as pitch meetings. Passing off, on the other hand, is when something so closely resembles an existing product that the trade or public would confuse the two.
2. Good record keeping systems of the creative process
Quite simply, document everything as you develop your format. Keep detailed and dated minutes of every format meeting, and identify the originator of every idea along the way. In particular, note whether ideas come from internal team members, or from external consultants or freelancers. You should also keep hard copy records of every format proposal you send out, and archive ALL emails related to the project.
Nobody doubts that format rights are where big money and prestige can be earned, but it can also be a legal minefield.
3. Robust and clear contracts for third party freelancers
Third parties are a common source of information leaks, so ensure that everyone who contributes externally signs a robust contract which makes their duty of confidentiality explicitly clear. This also extends to third parties that the freelancer may hire in turn – it is up to the freelancer to ensure that their sub-contractors are bound by the same obligations.
4. Register internet domains and social network profiles
Register the title of your format as an internet URL in as many forms as possible. Consider the various top level domains – .co.uk and .com – as well as more specialised ones, such as .tv. Create social media accounts using the same information – Twitter, Facebook etc. Not only will this protect your property from cybersquatters before the format is announced, it also sends a clear declaration of intent regarding the idea.
5. Create a trademark and use the trade bodies
Copyright may not protect an idea, but you can build a brand around your idea that can most definitely be protected. Titles and catchphrases can be registered as word marks, while logos can be protected as figurative marks. Think carefully about the territories where you want to sell the format, and ensure you are registered in all of them. Also register your idea with the Format Recognition and Protection Association (FRAPA) and, if in doubt, contact the International Format Lawyers Association (IFLA) for advice.
6. Invest in research before investing time and money
Protection is a two-way street, and you need to be confident that your idea doesn’t infringe on somebody else’s work. New takes on old ideas are fine, and similarities that are incidental or inevitable (the use of questions in a quiz show, for example) do not count as infringement.
7. Create a comprehensive format bible
The more detail you can provide about your format, the harder it is for anyone to claim it as theirs. A format bible should contain absolutely everything anyone could possibly need to know about your show, from scripts and set designs to presenters and catchphrases. Mark the cover and every page as “confidential” and pay particular attention to detailing the structure of the format – it’s this that is most likely to make it unique.
Think carefully about the territories where you want to sell the format, and ensure you are registered in all of them.
8. Pitch smart and pitch safe
When the time comes to start pitching your idea, it can be easy for excitement to overrule caution. Don’t get carried away. Keep information on a “need to know” basis, and within as small a group as possible pre-pitch. Don’t be afraid to insist on Non-Disclosure Agreements before meeting potential partners. Make it clear what aspects are confidential and keep notes of what is said and agreed.
9. License your format
Licensing contracts can provide more protection than IP laws, and organisations such as WIPO and FRAPA can help to mediate any disputes. If you go down this road, ensure that the contract requires licensees to grant the rights back to you if they add anything new to the format that makes it more successful.
10. Protect yourself
Every step you take to protect yourself is worthless if you aren’t willing to act on it. IP must be aggressively defended for the law to offer its full protection, so do not be afraid to take swift and decisive action against anything you feel is infringing your rights. Companies such as Endemol and Disney do this extremely well, and the benefits are clear. Formats that are weakly protected are hard to sell. Nobody will pay for something they can steal, and nobody will license something that can be stolen from them.