Back in the 1990s, when I first started in TV, I was selling gameshow formats for Action Time. I tried to pitch a series to a Swedish broadcaster. “We have this show already,” he told me.
Back in the pre-digital days of fax machines and VHS tapes, it was much harder to police sales and the nascent format industry was, by necessity, built on trust. Intrigued, annoyed and unable to Google the show directly, I contacted the producer to whom I had previously sold the show for Denmark. “Ah yes,” he admitted, “I may have forgotten to mention the Swedish version.” I’m pleased to say the situation was resolved amicably but my first experience of ‘format-lifting’ was a shock all the same.
There have been many high-profile cases since. In 2012, ABC launched a reality show called The Glass House in which 14 contestants lived in a house and competed for US$250,000. Viewers voted to decide who went home. Sound familiar? It certainly reminded CBS of Big Brother and legal proceedings ensued. Following a financial settlement, lawyers said: “The producers have admitted that one of them used confidential Big Brother manuals in the production of The Glass House, and they have expressed regret for using this material. In addition, those involved have pledged not to misappropriate CBS trade secrets in the future.”
The practice continues, even today. In August this year, Australia’s Network Seven launched a court case against the restaurant show Hotplate, claiming that rival Nine Network had used “almost identical casting, costuming, sets, music, promotion and judging processes to My Kitchen Rules.”
What’s at stake here is not simply a local stand-off, but a threat to the lucrative international distribution of Seven’s format. The dispute continues.
At Mipcom in October, I was surprised to see a new format called Is That Really Your Voice?, in which “jury members try to guess the best singer based only on clues given by the contestants’ physical appearance and performances without audio.” Apparently, this is a completely original format and nothing to do with South Korean firm CJ Entertainment & Media’s format launched at MipTV called I Can See Your Voice.
Where do we draw the line between inspiration and infringement? It’s a question that has always fascinated – and frustrated – me and so I was honoured earlier this year to be invited to the management board of Frapa.
Frapa is a “global organisation dedicated to the understanding and respect of original formats and their creators.” We have just celebrated our 15th anniversary and added some serious industry heavyweights to our board, all of whom are united behind the mission to encourage trade with integrity.
We believe that, in the absence of a clear worldwide legal framework, it is possible to work within agreed rules based on values to which we can all relate. That’s why last year we launched our own voluntary code of conduct. If our members adhere to these rules, a basis will be created from which a robust legal framework can ultimately be established.
Just before Mipcom, Frapa hosted a seminar with media law firm Lewis Silkin to discuss the future of the TV format industry and, in particular, the question of copyright protection. Format lawyer Jonathan Coad, who formed the International Format Lawyers Association soon after the foundation of Frapa, took us through the key guidelines for protecting a format and some of the recent successful actions to protect formats.
Where do we draw the line between inspiration and infringement?
One theme emerged loud and clear from the panel: you must be prepared to stand up for yourself if you think someone has ripped off your property or you can be pretty sure people will assume it is safe to do so in the future.
Every step you take to protect yourself is worthless if you aren’t willing to act on it. Would you use an image of Mickey Mouse in your branding? Of course not, because Disney’s lawyers would be on the phone immediately. Too many small TV producers fail to follow suit, and formats that are weakly protected are incredibly hard to sell. Nobody will pay for something they can steal, and nobody will licence something that can be easily stolen from them.
This is an important issue, but one that is too rarely acknowledged. It is easier to avoid confrontation and turn a blind eye. I would like to see copyright infringement discussed more regularly, honestly and openly. It’s all very well for the big networks, with their huge legal departments, to sue each other but it’s difficult for the smaller producers to complain, as they are understandably fearful of biting the hand that feeds them.
Broadcasters should be called to account too. They complain that there is nothing new, but remain part of the problem if they continue to commission derivative shows. In any case, copycats are almost always inferior to the original. At Frapa, we want to support those who innovate and convince the broadcasters to share our values of trust and integrity in the way formats are packaged and sold.
Rather appropriately, the show I sold into Scandinavia all those years ago was called Porkies. In the format, the panel watched a series of news videos and had to guess which were original and which were fake. It’s a skill that more buyers should develop.
This article first appeared on C21.