Anyone who wonders if God has a sense of humor (assuming for a moment there is such a deity) need look no further than the crisis of reality formats. The most successful innovation in television programming in the past 20 years is also the most vulnerable to unsanctioned knock-offs. One of the key problems, ironically, is the unique element that makes reality formats so successful: ordinary people. A producer can’t legally claim creative control and authorship over how individuals act, which makes the issue of copyright a nightmare for any producer with a money- making format project.
Castaway Television is in just such a predicament. In September 2002, the London, U.K.-based production company launched a copyright infringement lawsuit against fellow London prodco Granada Television over the latter’s plans to roll out a U.S. version of I’m a Celebrity…Get me out of here! (to be broadcast on U.S. network ABC). Castaway says Granada’s I’m a Celebrity… is a rip-off of Survivor, the world- wide rights to which Castaway lays claim. In the U.S., CBS – which transmits Survivor (made by Santa Monica, U.S.-based Mark Burnett Productions in North America) – filed a claim against ABC in November as part of the row. Both ABC and Granada are fighting the allegations.
The litigation in the U.K. and the U.S. could set a legal precedent by ruling that formats can be copyrighted. However, it may change nothing. Courts are fearful of setting up monopolies over ideas, observes Christoph Fey, a solicitor specializing in copyright law and managing director of the Cologne, Germany-based Format Recognition and Protection Association (FRAPA), an industry group established in 2000 that helps mediate format disputes. ‘Copyright is a monopoly,’ he adds.
The key problem is the definition of formats, and what legal protection lawmakers are willing to afford them. A format, Fey notes, is generally understood to mean ‘the know-how to make a television program; it is not the television program.’
As a result of this murkiness, format litigation focuses on analyzing the elements that constitute individual programs. ‘A producer could argue the [copyright] case is not about the originality of an element, but maybe an original combination of non-original elements. Perhaps this specific combination can be copyrighted, but this is very hard to argue,’ Fey notes, adding that last year Castaway unsuccessfully defended its Survivor format in Dutch court against Big Brother-format creator Endemol.
Whichever way the judgment comes down, the publicity of such a high- profile case helps raise the issue of TV property rights, and could help lift the fog surrounding formats. ‘I’m looking forward to the decision,’ says Fey. ‘If the court decision is positive for the one claiming there’s a copy- right infringement, this would be interesting for FRAPA to read, to see if we can translate that into different jurisdictions and territories.’
Regardless of the outcome, Fey insists his organization is here to stay. ‘Sometimes I’m asked whether we are afraid if people choose litigation that it will weaken FRAPA,’ that every dispute over format ownership and copyright will bypass negotiations and head straight to court, he says. But Fey is confident mediation will remain popular with producers looking to reach a workable business decision quickly, and not a landmark court precedent.