Copyright law: the reality

Reality TV is everywhere. It seems a guaranteed way to make money and get noticed. The human tendency to be curious about others’ lives is being exploited to the point where the viewers seem to prefer reality shows over daily soap operas. Perhaps this is because reality shows offer what the soap operas and sitcoms don’t: real action and reactions, real-life people and celebrities in their own skins. However, most of the shows that we see on our televisions are not products of original ideas.

They are the indigenous versions of existing shows that gained popularity in another country. The Internet will tell you that most popular shows such as Idol and Who wants to be a Millionaire have been recreated in 42 and 108 territories respectively. And since the trend of recreating popular reality shows has gained momentum, it is no surprise to hear of copyright infringement claims and complaints every few months.

Most recently, a complaint was filed in the District Court of California by Banijay Entertainment against a show titled My Parents Are Gonna Love You, produced by Angel City Factory and slated for broadcast on Fox network. The idea of the show was to have contestants bring home a celebrity pretending to be their fiancé to meet their parents. The show was said to be the American version of the plaintiff’s French show Mes Parents Vont T’Adorer! (My Parents Are Going to Love You!).

While the plaintiff, Banijay Entertainment, complained that Angel City Factory misappropriated the show format, another company, Morabito Picture Company (MPC), alleged that both Banijay and Angel City Factory along with Fox network infringed its copyright for its Italian show, Indovina Chi Viene Cena (Guess Who’s Coming for Dinner), which was the first show of its kind and was broadcast in 2001, with contestants bringing home celebrity boyfriends and girlfriends to meet their family.

MPC claims that Banijay was the first to copy its show and then licensed the format in other countries. Interestingly, Angel City Factory’s show has more resemblance to MPC’s Italian show. It remains to be seen how the California District Court will assess this case.

So we come back to the question: can a format be protected under copyright and to what extent? There is no uniform reply to the question and the position seems to be different in different cases. However, what is universally accepted is that ‘ideas’ cannot be protected under copyright law. It is only the expression of the idea that can be protected.

As per most Copyright Acts and WIPO rules, copyright subsists in original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Therefore, these separate ingredients of a show can be covered under copyright. But since none of the acts define or include TV formats, as they have come to be known, there is no codified law regarding their eligibility for protection. One has to go by the precedents set in every country.

One of the earliest cases that came up regarding protection of TV formats under Copyright was the case of Green v Broadcasting Corporation of New Zealand. The appellant Hughie Green was a famous TV presenter/performer who had created, written and hosted a television talent contest called Opportunity Knocks in England between 1956 and 1978.

In 1975, the defendant broadcast a similar television show under the same title in New Zealand. Green filed an action for damages for passingoff and infringement of copyright against the broadcaster in the High Court of New Zealand, claiming copyright infringement in the scripts and dramatic format of his show.

Green listed the similarities between the identical names of the show, use of identical catch phrases and sponsors to introduce contestants and use of the ‘clapometer’, which measured audience response through clapping sound. However, his case was dismissed by the trial judge as well as the Court of Appeal.

While the Trial Court held that there was no evidence that any part of the show was reduced to a written text that could be properly called a script and protected under copyright, the Court of Appeal of New Zealand concluded that the scripts as such did not express more than a general idea or concept, and hence were not the subject of copyright.

Green then appealed to the UK Privy Council, which also held that the scripts were inadequate to be protected under copyright. With this case, the Privy Council reiterated that copyright does not protect an idea in itself.

“Therefore, in most jurisdictions, the position now seems to be clear—a TV format can enjoy copyright protection if it is properly expressed in a way that reflects the basic idea and concept of the show, including a detailed step-by-step structure demonstrating the intellectual effort that has been put into it.”

In India, the Delhi High Court was faced with a similar case between Mr. Anil Gupta and another v Kunal Dasgupta and others, where Anil Gupta had conceived an idea of producing a television serial based on match-making known as Swayamvar. After developing the concept as a literary work, Gupta applied for its registration under the Copyright Act and was granted registration on in December 1997. He had also discussed this concept with the defendant, Kunal Gupta, and had given him and his colleagues a ‘concept note’ and a Powerpoint presentation. A few months later, Anil Gupta found out that a defendant was launching a similar programme named Shubh Vivah. The plaintiff filed an action for copyright infringement and a claim for huge losses if the defendants were not restrained by an injunction from launching their identical show.

While considering whether the idea conceived by the plaintiffs of producing a reality TV programme was a novel concept and could be protected, it was held that “[a]n idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Copyright Act. If there were similarities and defendant work was [a] literal imitation [of a] copyright work with some variations it would amount to violation of [the] copyright work”.

There was a similar case before the Bombay High Court between Zee Entertainment Enterprises Ltd. v Mr. Gajendra Singh, where Gajendra Singh, working as a consultant with the plaintiff, had prepared a concept note for a show based on Antakshari, and claimed ownership under the Copyright Act.

However, the plaintiff claimed copyright on the concept note, contending that Singh had prepared it in consultation with the programming team during the course of his employment with the plaintiff and therefore Singh could not create another show based on Antakshari with another production company.

Although in this case, Zee Entertainment could not establish the existence of a concept note, it was held that the “[m]ere use of the term ‘concept note’ would make no difference, it would be necessary for a Court in each case, to examine whether it constitutes work, which is copyrightable and entitled to protection under the provisions of the act”.

The court also held that the “[p]laintiff [is] not entitled to a monopoly in the concept of testing a person’s knowledge and memory of Hindi film music. It is the manner in which the contestant’s knowledge and memory is tested which accounts for novelty.”

It was observed that the plaintiff had developed and enhanced a general idea, and therefore, what the defendants had copied was not the mere general idea, not the well-known concept, but the plaintiff ’s novel presentation and pattern thereof both in form and content.

In both the above cases, the law of confidentiality also came into play because the defendants were aware of the concept and had access to the concept note of the shows, which was “capable of being the subject of confidential communication”.

Therefore, in most jurisdictions, the position now seems to be clear—a TV format can enjoy copyright protection if it is properly expressed in a way that reflects the basic idea and concept of the show, including a detailed step-by-step structure demonstrating the intellectual effort that has been put into it.

Anyone who comes up with a novel idea worth exploiting should keep in mind that the idea or concept must be adequately reduced into writing in the form of a concept note and/or an audio-visual pilot episode. This should elaborate the basic idea and reflect novelty in its presentation. It is also recommended that a confidentiality agreement be drawn up beforehand showing the concept note to a third party, since confidentiality clauses are taken very seriously by the courts in India.

Rahul Chaudhry is a partner at Lall Lahiri & Salhotra. He can be contacted at: rahul@lls.in