Until recently, any discussion about the market for formats – the blueprints for how to make a show rather than the completed program itself – referred specifically to the market for game shows. Spinning the wheel and giving the final answer are concepts that most easily lend themselves to local adaptation, or so international broadcasters appeared to believe. But while the likes of Wheel of Fortune and Who Wants To Be A Millionaire have dominated the scene for many years, they are no longer the only programs proving effective as formats.

Trish Kinane, joint managing director for London-based producer/distributor Action Time, says her company originally focused on traditional entertainment programs – quiz and game shows. ‘Then it became apparent that there is a whole area of lifestyle, cookery, gardening and decorating shows that are also format-able,’ she explains. (Surprise Chef, The Mole and The Caterers are a few of Action Time’s formats.) Peter Van den bussche, director of sales for Endemol Entertainment UK/Gem (the London-based distribution arm of Dutch prodco Endemol), agrees. ‘All of a sudden there are broadcasters saying this is a great idea.’

Encouraged by massive reality/voyeur hits such as 1900 House, Big Brother and Survivor, broadcasters are waking up to the opportunities offered by a broader spectrum of factual formats. For example, Curt Sharp, NBC’s VP of primetime, alternative programs and specials says, ‘The doors are really open at NBC for factual-based programming, both as continuing series and shows that have the possibility of making good specials for us as well.’

Certainly the financial advantages of factual programs have not been overlooked. ‘Compared with the costs of ER or Friends,’ says producer Alex Graham of London-based Wall to Wall Productions, ‘even a well-budgeted factual show for the networks is a lot less. There’s an economic logic driving this.’

The other important facet of formats for broadcasters is the opportunity to pump up local content. Notes Van den bussche, ‘Five years ago, most European broadcasters realized that to be successful they needed local programming, but when you start from scratch, developing local programming can be quite expensive. So, often the route they opted for, particularly the commercial broadcasters, was buying into formats.’

From an independent producer’s standpoint, the sale of formats can be an additional bargaining chip when pitching. Says Rob Weller, executive producer of California’s Weller/Grossman Productions, ‘Last year we were thinking ‘what’s the internet component that goes with my little show?’ Now if I pitch a show idea, I need to include the format possibilities that go with it. It’s becoming an important adjunct to any pitch. . . [Formats] are a huge cash cow, that’s why everybody wants them.’

Creation or evolution?

In some regards, every genre is fair game for formatting now that the barriers between entertainment and non-fiction are coming down. In Weller’s opinion, ‘Anything that starts with an original concept has the potential to be a format.’ However until a show exists, the idea of marketing the tool-kit of how to create a localized version of it can be difficult to envision.

With 1900 House, an historical reality series about a modern-day family living a turn-of-the-century lifestyle, producer Graham admits he didn’t see it as a format. ‘It was very rooted in London, very rooted in British history. As we were making it, I didn’t think, ‘what a great new format’. My main focus was to make it work as a domestic show. But I think that’s probably the key to successful formats.’ Represented by London-based distributor ITEL, the 1900 House format has been optioned in several territories, including Australia, Holland and Germany.

Van den bussche was similarly caught off guard, in his case with London-based Bazal’s cooking show Ready, Steady, Cook. ‘We never thought that it was a format,’ he recalls. ‘It was only after a Swedish broadcaster came to us and said, ‘We’re very interested and we think we’d like to buy the format,’ that we thought, ‘Hey, hold on, I think we’ve got a format here.” Four years later, the format has sold in 16 territories, including the u.s. where it airs on The Food Network as Ready, Set, Cook. ‘Since then,’ Van den bussche continues, ‘we have set out – or we try to work in – more of a formatted formula sort of way. [This is] so we know that if we add certain elements to it, there is a chance it will become a format we will be able to exploit. But the reality is that more often than not one discovers it only when it’s actually been made or you’re well into it. You can’t really set out saying ‘I am going to create a format.’ It’s like saying I am going to create a masterpiece. You never know.’

Look to the bible’

Whether a program goes on to sell as a format often depends on its track record. Buyers are quick to notice a ratings winner and are anxious to find out how to create one for themselves. Sara Singer Schiff, senior sales executive for London-based distributor Target, says she

generally provides a potential buyer with a tape of the program as part of the pitching process. When selling a format, ‘the focus is slightly different,’ she notes. ‘You’re not emphasizing who is involved as much as [the show's] approach, its position in the marketplace and its concept.’ Target distributes Popstars (produced by Sydney-based Screentime) as a format, among other reality programs. If the sale goes through, what the buyer gets depends on how difficult the show is to produce and how much money changes hands. The crucial document is the show’s bible – notes detailing what to do, and often what not to do. ‘We have a bible for each format, which is an incredibly comprehensive guide,’ Kinane says. ‘It explains how [the show] was done in the original territory, perhaps how other territories have done it, problems they had and how to avoid them, and any variations on the format that we tried out before we went to tape.’ She adds that the bible can also include inside information on set designs, music, computer software and graphics.

For Matthew Frank, director for U.K. distributor RDF International, the bible only comes with a second tier format purchase. ‘There are three ways of selling a format,’ he says. ‘One is you literally send someone a tape, they pay a format fee and they make a few phone calls to you. The second is where you do a format bible with all the instructions in it. The third is where you do a full consultancy, where you send your team to that country to work directly on the

production and advise throughout.’ The format fee increases relative to the originating production company’s level of involvement, Frank adds.

Some format creators/distributors insist on a certain level of hands-on participation to protect the integrity of their programs. Says Van den bussche, ‘One thing

we negotiate is that we always supply consultancy. This means we are present in the start-up phase to make sure things are produced the way we think they should be produced, but also to help the local producer avoid the mistakes we made.’ Others are happy to leave it up to the buyer. Frank thinks it depends on the program. ‘Something like Scrapheap Challenge [in which two teams compete to construct a machine for a specific task using scraps from the junk yard around them] is a complicated show to make. The only way for us to [sell the format] is to make it for that country or to have a number of people from our production working on it with them. But for a show like Faking It [think Eliza Doolittle from My Fair Lady, but in a variety of modern-day settings], it’s probably much easier to send them a tape and give them some advice on how to choose the characters.’

The ‘art’ of the covenant

Part of the appeal of selling formats is the chance to extend the returns on a program without any further investment in the actual production. Each deal is different, taking into account the territory in which the buyer is based, whether the program is destined for daytime or primetime, and the number of episodes the format purchaser plans to make. ‘Always limit the duration of the contract’s terms and the number of episodes,’ Van den bussche advises. ‘You want to go back and re-negotiate if it’s successful.’

According to both Van den bussche and Schiff, the license fee for a format generally works out to about 75% of the fee for the purchase of the finished program. ‘In the U.K.,’ Kinane says, ‘format fees can range from a few hundred pounds for a daily cookery show to £20,000 for a massive hit [once-a-week, primetime].’

At RDF, the format fee is calculated to be about five percent of the buyer’s production budget, Frank says. ‘I would far rather sell the [completed program]. We probably do better financially out of that, unless it’s a very long run of something.’ In his experience, the license fee from a format sale works out to substantially less than a straight acquisition. He explains: ‘A format fee in Germany, for example, on a program budgeted at £150,000 would normally be between £5,000 and £7,000, whereas you would hope to sell programming into Germany for £20,000 to £30,000. So, it’s about 60% less than you would get for a straightforward acquisition fee.’

The original broadcaster sometimes shares in the revenue generated through format sales, but again this is determined on a case by case basis. Says Kinane, ‘Whether the broadcaster gets a cut of the sales depends on how much they put into the initial pilot.’

Such is the case with Endemol Entertainment UK/Gem’s Changing Rooms, an interior decorating format produced by Bazal as a commission for BBC2. Says Van den bussche, ‘The BBC profits from the international exploitation because they are partners in the program. They shared the risk in the beginning, so they benefit on the back end.

Is this always the case? Not necessarily.’ The runaway success of Changing Rooms was

a surprise, he adds. Only after the program pulled a 23% share in the BBC2′s 9p.m. timeslot, and beat the news on BBC1, did its potential for profit become obvious. Van den bussche recommends that all producers discuss ownership of the format rights during initial negotiations. ‘You could lose out if the program goes the route of being sold as a format.’

Thou shalt not covet thy neighbor’s format

The arch-nemesis of format sales is the rip-off. At present, little exists in law to prevent the theft of a program concept. ‘People in the formats business have become increasingly despondent about the ability of the courts to settle format disputes,’ says David Lyle, head of light entertainment development, acquisition and resources for London-based Pearson Television, ‘in part because the law has trouble coming to grips with the intellectual property encapsulated in a television format and in part because judges don’t watch enough TV – they wouldn’t know a cartoon from a documentary.’

At MIPTV last April, Lyle helped form international industry body, the Format Recognition and Protection Association [FRAPA], in response. One of FRAPA’s initial short-term goals was to mediate and arbitrate disputes outside of the court system, though Lyle concedes that so far the organization has done more to raise the profile of the issues. Among the members already onboard are KingWorld and Endemol.

Perhaps the best protection for a format is to get it up and running, Lyle notes. ‘Having it on tape gives it form.’ He also advocates creating a bible for the program, and updating it to reflect the final product versus the original concept – ‘it’s a protectable collection of points about how to produce the show.’

Lyle also notes that it’s vital to make sure the idea you’re protecting is a format and not just a general idea. The distinction is not always clear. When German broadcaster SWR/ARD began developing Schwarzwaldhaus (Black Forest House – w/t), the parties involved with 1900 House immediately reacted. According to SWR/ARD commissioning

editor Walter Sucher, he was surprised to receive a letter from ITEL (1900 House‘s distrib) advising the German broadcaster to stop development of the project. An ITEL spokesperson confirms that itel issued the letter, though the company has not taken any further action.

Sucher freely admits that 1900 House inspired Schwarzwaldhaus, but insists that the two programs are significantly different. He explains: ‘I’ve never spoken with anybody who produced 1900 House and I have never seen a whole program. I just saw

a 10-minute clip a year ago. Then we discussed the anniversary here (the 50th anniversary of the merger between Baden and Württemberg in 2002) and we came up with a very complex and interesting project consisting of four major parts, only one of which uses as a basis an idea that is somewhat similar to what our colleagues in London did’ If we had spoken to someone from [Channel 4 - the original broadcaster] or Wall to Wall about what they did to reach a certain quality or to overcome a certain problem, then we would have made use of their ideas and their experience, and that is of course protected. But we have never done so.’

1900 House producer Alex Graham says that in Wall to Wall’s opinion, it would be best to move on rather than waste time and energy. ‘The whole issue of international copyright, particularly the protection of formats, is difficult. In the end you have to make a commercial judgement whether it’s worth your while pursuing it through the courts.’

Go Forth and Multiply

Making the most of your format

Why rack your brains to come up with an original idea if you’ve already got a hot concept? ‘Lateral exploitation’ is the term coined by Wall to Wall producer Alex Graham to explain the plethora of ideas spawned by just one format, 1900 House. They include:

1940s House – Based in the London of the Second World War, this series re-creates a world full of air raids, buzzbombs and rations. Production recently wrapped on this commission for Channel 4 in the U.K.

Country House – This program simulates life in an English country home of the early 1900s. Wall to Wall West (the prodco’s Bristol office) is producing the series for C4.

Frontier House – Set in Montana around 1880, this American version is a copro between Wall to Wall, PBS and the U.K.’s Channel 4. Filming begins this spring.

Life on Mars – Currently in development for U.S. network ABC, Graham says this one is the futuristic version, ‘Martian House’.

Wall to Wall isn’t alone in spotting the advantages of lateral exploitation. At Action Time, based in London, joint managing director Trish Kinane says Surprise Chef – a cooking format wherein a celebrity chef goes to a supermarket, peeks at the contents of an individual’s basket, and asks to go home to create a culinary delight using those ingredients – has inspired Surprise Gardener and Surprise Decorator. ‘It’s a little franchise here.’

Practical advice for protecting formats

By Robin Hilton

Copyright

Since copyright only protects the expression of an idea, record on paper the details of the format. Prepare a bible containing a fully elaborated treatment with sample scripts or sketches, set designs, floor plans and logos, costumes, theme tunes, etc.

Confidentiality

When information is disclosed in circumstances that are plainly confidential, the

person receiving that information is under a legal duty not to disclose it to anyone else. This may help format creators who pitch ideas to producers and broadcasters. Ideally, they should get the recipient to sign a confidentiality letter. Failing that, they should state that the information is being submitted in confidence.

Trademark registration

If you have a catchy title that you or an overseas buyer of the format wish

to exploit, particularly for merchandising, it may be worth registering it as a trademark. This can be an expensive process, however, because separate trademark registrations are usually required for different countries and different categories of products and services.

Unfair competition

In certain countries there are laws designed to protect against unfair competition, such as the marketing law in Denmark that Celador used to prevent the exploitation of a Danish show which was remarkably similar to Who Wants To Be A Millionaire.

Contracts

Another way in which successful format owners have created an asset is to sign

exclusive agreements with talent (stars/hosts) or other providers of know-how (question-setters/writers/technicians). Know-how is often exactly what buyers of

formats are after and they will pay good prices if a producer can provide the exact recipe to enable a show to be replicated overseas.

A format needs to be more than a mere idea if it is to be protected under the laws of intellectual property. Think of it, rather, as a compendium of ideas which should be meticulously collated to form a unique, distinctive plan for a program or series.

Robin Hilton (robin.hilton@simkins.com) is a lawyer specializing in film, TV and digital media at London-based media law firm The Simkins Partnership (Tel: 44-207-907-3000; Web: www.simkins.com)