Small and large production companies alike secretly fear the same moment: turning on the tv to discover that hot new program is suspiciously familiar. The universal concern over the theft of intellectual property means everyone is wary of sharing their film or tv program ideas. Wildlife filmmakers are not immune to this issue, although until recently it was unclear how to protect ideas. However, as wildlife programming evolves to include more presenter-led and entertainment-styled shows, natural history doc-makers are giving more thought to intellectual property.
The first lesson is understanding when an idea becomes protectable. Melisse Lewis, director of legal affairs for Discovery Communications, says, ‘Under u.s. law, an idea is not copyright-able; it has to be embodied in a tangible form. Since we get so many ideas, we ask in our submission guidelines for fairly comprehensive information – a treatment, a budget summary and a production timeline. From a legal standpoint, the more something is fleshed out, the more it’s protectable.’ This concept applies in most countries. Notes Michael Stedman, managing director of Dunedin-based Natural History New Zealand, ‘If I have done a lot of research and developed a storyline, there’s a raison d’être, something tangible, a body of work. You can register that.’
To protect the ownership of the concept, Lewis advises producers to keep dated notes of conversations and meetings in which the program idea is discussed. Chris Dickinson, managing director of Shine Television Productions in London, finds a key strategy is to establish good relations with the subjects, even to the point of asking them to sign exclusivity deals. ‘In my experience, people have been quite willing to agree, because they’re often happy to get their stories out there.’ He adds, however, that he normally does not pay for exclusivity. ‘I wouldn’t go that far, not in the development stages, unless it’s dead certain you’re going to get commissioned. Otherwise, you’re likely to lose money.’
Dickinson also says that when pitching, he only discloses as much information as is necessary to convey an idea. ‘I don’t give contact names or details. Keep
the cards close to you until you’ve established trust and a history. Once you have that, it’s harder for [a company] to take an idea.’
Many companies that field pitches have a system in place to screen incoming ideas, both for their own protection and that of the indie. Stedman says of Fox-backed prodco NHNZ, ‘One of the first things we do before we even look at a proposal is conduct a search within our own system to ensure we have nothing similar. If we do, we notify them immediately. If they want to resubmit and come again, that’s fine, because often we find that two ideas can be merged together or we can work something through. We are terrified of anyone developing a view that we would steal ideas, because once word goes out that you knock off ideas, people are reluctant to approach you.’
At Discovery, producers wishing to pitch to any of the networks (including Animal Planet) are asked to sign a submission statement before their ideas are considered. According to Lewis, producers are asked to confirm that they are the sole originator of the idea in the first section of the form. Next is a statement acknowledging that the idea is not confidential, meaning the network can discuss it with other parts of DCI or with outside production partners. An explanation follows about the possibility that Discovery may have already been pitched a similar idea or may have a similar project in the works. The following sentence warns that submission materials cannot be returned, and in the final line the producer acknowledges that they do not expect compensation for submitting an idea. Adds Lewis, ‘We ask that a production company fills out one form, and then we keep that on file for their future submissions as well.’
Producers may at first be skeptical about the genuine coincidence of ideas, but experienced commissioning editors claim it happens all the time. Dione Gilmour, head of the ABC’s natural history unit in Melbourne, says, ‘We ask for applications from independents three or four times a year and every time there will be popular subjects with multiple groups putting in the same basic idea.’ Gilmour acknowledges how easy it is to suspect theft when a bigger entity comes up with a show concept like your own, but concedes that first impressions can be misleading. ‘In the situations where I’ve felt plagiarized by the BBC or National Geographic, it has been more that they are better resourced and have gotten there first.’
Producer Dickinson recalls an incident at WildScreen in 1998, when he listened to Christine Weber, then a producer for Nat Geo, describe a series – sending
five individuals around the world to look at various environmental issues – that was almost identical to one he had helped develop for Granada. ‘She obviously hadn’t heard anything about what we were up to, so I had a little chat with her about it, and she said, ‘Have you seen this French show that is very similar?’ I suddenly realized it’s really quite a simple formula. If we had spoken to National Geographic before with the idea, it would have been very easy to become suspicious of them. And yet, it was just coincidence. So, it does happen.’
Despite the instances of coincidence, theft of intellectual property is still a concern producers would be wise to guard against. In these early days of defining intellectual property, producers are better off employing preventative measures than taking action after the fact. Says Stedman, ‘When you’re dealing with intellectual property, you’ve got to work towards an outcome both parties feel good about. Otherwise, it’s going to be tears-before-beers time.
‘There is legal recourse, but if you’re a one or two-person operation and you’re going to take on a big company, that’s a big task. We all know that if you are going to go down that path there are risks and huge dollar signs.’
Adds Dickinson, ‘It is very difficult to know at what point you can say ‘this is my idea’. The more elements you can establish, particularly when it comes down to presenters or on-screen stars, the more it is yours.’