Seven Network (Operations) Limited v Endemol
Australia Pty Limited  FCA 800
On 6 August 2015, the Federal Court dismissed an interlocutory
application by Seven Network (Operations) Limited
(Seven) to restrain the Nine Network
(Nine) and production company Endemol from
continuing to broadcast the kitchen reality TV show, The
Seven alleged that, by producing and broadcasting episodes of
The Hotplate, Nine was infringing Seven's copyright in
its program, My Kitchen Rules (MKR).
The dismissal by the Court of Seven's application means that
the remainder of the first season of The Hotplate can
continue to be broadcast (at least until the final hearing).
The question before the Court was whether there existed a
reasonable basis for Seven to argue that Nine had copied the
format, or a large part of the format, used in MKR, such
to warrant an urgent and immediate injunction, until a final
determination is made by the Court after a full hearing.
According to Seven, each episode of The Hotplate
produced by or on behalf of Nine reproduces in a material form:
key elements of MKR sufficient to constitute a
substantial part of one or more of the MKR literary works
(including the format pitch and presentation for MKR and
the "Production Bible" for MKR); and
the combination and series of incidents (including situations,
events and scenes), plot, images and sounds embodied in the
MKR dramatic works.
The Court dismissed Seven's application, finding that the
balance of convenience of either granting or withholding the
interlocutory relief weighed in Nine's favour. In particular,
the Court noted the difficulty faced by Nine in re-establishing the
momentum of The Hotplate if it were to be abruptly halted
by injunction and then "shelved" for the period of time
necessary to determine the substantive proceeding and any
However, Justice Nicholas did find that Seven has a reasonably
arguable case that the formats of MKR and The
Hotplate are very similar and that this close similarity is
(at least to some extent) the result of copying by Nine.
In an official statement, Seven has confirmed that it will
continue its case. The Court has suggested that an early final
hearing should take place before the launch of any second season of
It has proven challenging, in Australia and internationally, to
establish copyright infringement in reality TV formats. This is
because copyright protects the expression of an idea, but not an
In the only previous case about copyright infringement of a
reality TV format in Australia, Nine Films & Television Pty
Ltd v Ninox Television Ltd  FCA 1404, a production
company Ninox was unsuccessful in its claim that the ideas of its
show Dream Home were copied by Nine for its show The
Block. In that case the Court held that the similarities
between the shows were too broad to constitute a copyright
For the purposes of its interlocutory application, Seven placed
emphasis upon its contention that Nine infringed Seven's
copyright in the MKR dramatic works.
To prove copyright infringement in a dramatic work, an applicant
first needs to prove that there are enough unique elements in the
format to constitute an original dramatic work so that copyright
subsists in the format, and then needs to prove that a substantial
part of its original dramatic work was copied. This is challenging
as reality TV shows are usually unscripted and often derivative of
other shows. In the substantive hearing to come, Seven will need to
establish that the combination and series of incidents, plot,
images and sounds are elements that together constitute an original
dramatic work and that a substantial part of that work was
During the application Seven alleged that Endemol had possession
of a copy of the MKR "production bible" however this was
not referred to in the judgment. It will be interesting to see how
Seven argues its case in the substantive hearing to come in respect
of the literary works (including the format pitch and presentation
for MKR and the "production bible" for MKR).
In addition to copyright, Australian format owners have also
sought to rely on other forms of legal protection, including trade
mark law, the law of confidence, misleading and deceptive conduct
under the Australian Consumer Law and the tort of "passing
off" to protect the misuse of their formats. The approach
taken by format creators to Australian legal protection of their
formats has the potential to alter with this important "format
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