French philosopher, Roland Barthes, believed in the death of the author, arguing that the real owners of art are the audiences who watch, read and listen. Fortunately, the law disagrees, says Jeremy Dickerson from Burges Salmon LLP.

In the entertainment industry, the traditional remit of copyright has been to protect literary, musical and artistic works in a tangible or material form, including film scripts, music and moving images. However, as technologies and tastes have developed, new forms of copyright have emerged to cover new concepts, such as the format of reality TV shows.

But, even though the printed plot of a play may be protected by copyright in the UK, the potentially lucrative format of a TV programme (the global market in formats is estimated to be €2.4 billion) may not receive the same protection. Indeed, the Law Lords in the 1989 case of Green v Broadcasting Corporation of New Zealand confirmed that there was no copyright in the format of Opportunity Knocks as it was classed as an ‘idea’. This remains the position in most jurisdictions, but two cases in the Netherlands and Brazil suggest that we may be moving towards greater protection for these formats.

Short statements of unformulated ideas are simply too vague to protect, whereas specific and fully developed original concepts may well be capable of enjoying copyright protection

Who owns an idea?
A claim for infringement of copyright by TV company Endemol in Brazil raised arguments as to how the television programme Big Brother could be subject to copyright, as, without scripts, the format of the programme amounted to no more than an idea. However, the court ruled that more than a mere idea had been used, and it was held that the ‘whopping similarity’ of the format used by the defendant did ‘not stem from chance’ and so Endemol’s claim was successful and damages were awarded – confirming that the show itself did attract copyright protection. However, in the Netherlands in 2004, the Dutch Supreme Court ruled that the Survivor television format, although a copyright protected work, was not infringed by the Big Brother format. It seems that short statements of unformulated ideas are simply too vague to protect, whereas specific and fully developed original concepts may well be capable of enjoying copyright protection.

In the publishing arena, the recent judgement in The Da Vinci Code case in the UK reiterates the general proposition that there is no copyright in an idea; it is the expression of that idea which will attract protection.

This article first appeared in IP Review, issue 15

For more articles by Jeremy Dickerson please click here

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