1 February 2011CopyrightKristine S. Snyder

Dinner for two?

Norwegian district court rules against copyright protection for television format

The popularity and globalisation of reality television programmes has increased the value of television formats. However, such formats or concepts regularly are not protected by copyright law. Television programmes may therefore be produced or copied without a licence granted by their inventor.

A recent decision made by the Oslo District Court confirmed that television formats typically are not works that receive copyright protection. The case is the first in Norway to address this question, one that has been troubling the courts in many other countries for some time.

The facts and background of the case

The legal proceedings were instituted by a television production company that had acquired use rights for the popular programme Come Dine with Me. Norwegian television channel TV3 (owned by broadcaster Viasat) sued the Norwegian broadcaster TV Norge and the TV production company Monster for copyright infringement and violation of the unfair competition provisions in Sections 25 and 30 of the Norwegian Marketing Control Act.

The case centred on the format for a television series called Come Dine with Me, the rights to which were held by Viasat and its partners ITV Studios Ltd, ITV Global Entertainment Ltd and Silverback AB.

“The court further emphasised that competitors must be allowed to follow trends for programmes of this kind and that even relatively small differences are sufficient to avoid the risk of confusion.”

In the course of 2008 and 2009, all the parties were involved in discussions about producing a programme for the Norwegian market based on the format of Come Dine with Me. Both TV Norge and Monster withdrew from the discussions and associated partnership opportunities. Around that same time, TV Norge had also seen a Hungarian television programme called Fish on the Cake and engaged with Monster to develop a Norwegian version of the Hungarian series.

Simultaneously, TV3 had also begun to broadcast the programme Klokka Åtte hos meg (Eight O’clock at My Place), later renamed Celebert Selskap (Celebrated Company), based on Come Dine with Me.

TV3 claimed that TV Norge and Monster’s programme 4 Stjerners Middag Halv Åtte (4-star Dinner at 7.30) copied the format of Come Dine with Me in violation of copyright. TV3 contended additionally that TV Norge and Monster violated Sections 25 and 30 of the Marketing Control Act.

The court’s ruling

Judgment was passed in November 2010 in favour of the defendants TV Norge and Monster. The court stated that only works with a sufficient degree of creativity qualify for legal protection. In other words, a work must have an originality of its own to fall within the scope of application of the Copyright Act. The Oslo District Court held that in this case not only the idea of the show, but also its individual elements, lacked originality.

Even if the Copyright Act does not apply to a format or concept, unauthorised use of a format might still infringe the principles of unfair competition. In cases where a product has competitive originality and special circumstances constitute an unfair act, an imitation may infringe. In regards to the relevant provisions in the Norwegian Marketing Control Act, the court found that there was no risk of confusion between the television programmes, due to the actual differences in the content and overall ‘packaging’.

The court further emphasised that competitors must be allowed to follow trends for programmes of this kind and that even relatively small differences are sufficient to avoid the risk of confusion. The defendant’s TV programme was also not to be considered as an unreasonable exploitation of the commercial efforts of the plaintiff.

The court further stated that the defendant’s behaviour or action overall could not be considered to be in breach of good business practice and that it was the legislators’ intention to allow for competitive situations such as the matter in hand.

The court’s ruling indicates that most television formats generally will not be considered works of art and therefore will not receive copyright protection. However, the decision should not be interpreted to mean that copyright protection for television formats is impossible.

Copyright has always adapted to changing demands, and the future will tell if it also can develop to embrace television format rights. Claims will continue to be decided on a case-by-case basis, and it therefore seems inevitable that further litigation around this specific topic will continue in many countries in the future.

Kristine S. Snyder is an attorney in the trademark department at Bryn Aarflot. She can be contacted at: kss@baa.no

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