Award-winning writer-producer Phil Gurin is president and CEO of globally focused The Gurin Company, and co-chairman of FRAPA (The Format Recognition and Protection Association), which can be found online at frapa.org.
It’s a very dangerous time for people who create intellectual property. It’s also a very sexy time. There are more platforms all over the world eager to exploit the creative efforts of writers, producers, directors, creators and talent, and there is more opportunity to have your creation viewed by the largest audiences possible in the shortest time imaginable. Which means it’s a good time to make money, and making money is sexy.
But therein lies a dilemma. With so much content available for so many in such a diverse distribution ecosystem, all intellectual property runs the risk of becoming disposable, and thus less valuable. What once was a thriving catalog business has been turned upside down by so much first-run new content that if you have seen it once, it hardly merits a second viewing with so much else you haven’t yet seen out there to choose from. (Ah, remember the joy — and value — of reruns?)
This urge to create new content fuels the artist, but also tempts the copycat. There is now a common language for viewer consumption the world over. With all due consideration made for local custom and culture, the predominant shape of unscripted content has been dictated by a handful of major creative players (American, British, Scandinavian, Dutch, Israeli, Japanese, Korean), with a smattering of other hits developed in other territories.
So when one of the big territories creates a big hit at home, the rush to license it around the world becomes a mad dash to beat the rip-offs. The common belief is that the first one to market in a given format wins, that there is room for a second format of a common theme, but after that the returns get small. The race to be first, whether legally or illegally, is what drives the format business. Sadly, it also drives the stealing business. The thinking is thus: if I create it, great. If I create the second version, not so bad. But if I didn’t create either, hell, let’s make up our own and get it out there fast and dare someone to sue.
The courts have been reluctant to reward lawsuits over copyright infringement in the format business. There are many examples of similar shows in the marketplace, but unless it’s 100% the same, it’s viewed as different and therefore not a copy. Among reasonable people you could look at the original and the rip-off and see what happened. But without a damning, “smoking gun” document that says, “Let’s copy this show,” judicial systems around the world don’t seem to be helping to protect original content creation. It’s the Wild West, guns a-blazing! And given the wide variety of cultural expectations and divergent legal theories in places where the notion of intellectual property is not established, format creators find themselves trying to protect their ideas in territories where the very idea of owning intellectual property is not understood or recognized.
But there is hope. And there is money to be made, so it’s all still worth fighting for. If format industry stakeholders can agree to a certain set of industry standards, and if companies large, medium and small can agree on foundational principles of fairness and honesty, the business can perhaps save itself. If courts can’t effectively combat format theft, perhaps it’s up to us to protect our own. Call it the religion of formats, or vaccinations for format protection. Whether theological or medical, when a large enough group agrees to a fundamental premise, the religion can spread, or the disease gets wiped out. We need herd mentality to keep our business alive.
Without a viable, safe and protectable format industry, rip-offs will dominate, first to air will be the only lucrative source of revenue, and the underpinning of the entire distribution system will collapse. Giant multinationals will see their values decrease as the content they own, create and sell will be stolen and replaced with inferior merchandise, like a bad
handbag or knock-off toy.
If, together, the industry works to shame the cheaters and thieves, if together we establish common practices for registering and protecting formats, and if together we develop globally agreed upon guidelines to establish what is — and what is not — a format, we can protect the business that feeds our families.
FRAPA is a not-for-profit international organization with hundreds of members in dozens of countries aligned to learn about and protect the format business. Its website has tools to help companies and creators learn how to protect their content. Its Code of Conduct is a methodology by which its members agree to respectful practices. And its Declaration of Cooperation (which, in full discloure, was penned by me) is a foundational manifesto for members and non-members alike to sign and acknowledge what and how we should all work with one another.
It all comes down to this: I’ll buy from you; you buy from me. I won’t rip you off; you don’t rip me off. I will treat you with respect; you treat me with respect. If we can start with these basic common ethical fundamentals, and our own industry set of rights and responsibilities, we can protect and grow the fastest moving sector of the entertainment industry.
It’s dangerous for sure. But it’s up to each and every one of us, if we hope to survive.
This story first appeared in the May/June 2019 issue of Realscreen Magazine, which is out now. Not a subscriber? Click here for more information.