Australia: What is happening with television formats in Australia?

Last Updated: 13 November 2015
Article by Sonia Borella and Dan Pearce

Most Read Contributor in Australia, September 2017

The global trade in television formats is booming. Like never before, designing an exportable format can mean the difference between developing a production solely for the domestic market and creating a concept executed in multiple markets that reaches a global audience. At the same time, we are seeing more and more programs produced in the domestic market based on formats originating overseas.

Grundy Television (now FremantleMedia Australia), founded by the great Reg Grundy in 1959, was one of the pioneers of the global television format industry and our Australian platforms continue to be awash with programs based on formats originating overseas like The X Factor, Real Housewives, Grand Designs and The Voice. More recently we have witnessed a notable rise in Australian-created formats being optioned and licensed internationally. Among others, the growing list includes Go Back to Where You Came From, A Moody Christmas, Kath & Kim, The Slap, Strange Calls, Secrets & Lies, and Review with Myles Barlow. As demonstrated by the overseas adaptations or remakes of some of these formats, such as Rake and Wilfred, a deal can see members of the original Australian creative team land roles in the production of the overseas program.

How does the law protect a format or format right?

A format or format right, which could also be referred to as a "remake right", is hard to define and hard to protect, and this is a universal problem faced by format creators and owners.

For present purposes, a format may be considered to be, at its most basic level, the unique characteristics of a program (for example, title, characters, settings, music, etc.) which are capable of being licensed by the licensor to develop a new program in another territory in accordance with the local language and customs of, and often with talent from, that other territory.

The core issue faced by format creators and owners stems from the cornerstone principle of copyright law, namely that it is only the expression of an idea that is protected by copyright, not the idea itself however original it may be. A leading example of what Australian courts have said in relation to the "idea-expression dichotomy" is in Zeccola v Universal City Studios Inc. In that case Universal City Studios sued the owner of the rights in Great White, an Italian horror movie in which a gargantuan shark terrorises a small community, only to be pursued out to sea by a band of heroes who finally manage to obliterate it with explosives. Sound familiar? After watching Great White alongside Steven Spielberg'sJaws, the trial judge concluded that the two films were objectively similar and that the Italian film had infringed Universal's copyright. Upholding this decision, the Federal Court stated that, while there can be no copyright in the central idea or theme of a story, originality lies "in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme."

For the first time in ten years, formats and format rights are in the spotlight in Australia, with the Federal Court set to consider Channel Seven's claim that Channel Nine's and Endemol's The Hotplate infringes Seven's copyright in My Kitchen Rules.

The only previous case about infringement of a reality television format in Australia is Nine Films & Television Pty Ltd v Ninox Television Ltd (a 2005 case). Ninox alleged that Channel Nine's The Block copied the ideas underlying its show Dream Home, a New Zealand reality television format which was licensed and remade by Nine two years earlier. As part of its strategy for licensing Dream Home overseas, Ninox developed a production bible outlining the key components of the show. In the case, Ninox put on evidence showing that it had given a Nine employee who worked on Nine's remake of Dream Home a copy of its production bible and that employee was involved in the creation of The Block. The Federal Court dismissed Ninox's claim of copyright infringement after comparing the two shows and concluding that there were significant differences between them. The Court also held that there could not be any substantial reproduction by Nine simply by reason of the fact that there were large elements of unscripted dialogue and interaction in the shows.

The takeaway from these cases in relation to formats is that while the discrete elements of a program may be legally protected there may be no such thing as an overarching format or format right recognised by the law in Australia, even if format rights are licensed internationally often for substantial monetary gain. It would usually be easier for a producer to establish copyright in a drama television format than a reality television format given that in a drama the characters, dialogue and plot are predetermined and condensed in material form, by virtue of the script. Other than a script, examples of the elements of a format that may attract copyright protection include the production bible, sound recordings, set design, music and graphics. In the current case concerning The Hotplate and My Kitchen Rules, Seven has drawn the Court's attention to "literary works" in which copyright subsists such as format pitch, format presentation and the production bible of My Kitchen Rules, and "dramatic works" in which copyright subsists being "the combination and series of incidents (including situations, events and scenes), plot, images and sounds reduced to material form" for certain episodes of My Kitchen Rules.

While Seven was unsuccessful in its interlocutory application inThe Hotplate proceedings, in an official statement Seven has confirmed that it will continue its case. In addition to copyright, Australian format creators and owners also seek to rely on other forms of legal protection, which in Australia include trade mark law, the law of confidence, misleading and deceptive conduct under the Australian Consumer Law and the tort of "passing off" to protect their formats. While again not offering comprehensive protection for a format, these areas of law can be helpful for format owners.

Some issues in protecting and licensing formats

We are often asked by format creators how they can legally protect their format concept when pitching an unproduced show, or initial "paper" format, and the answer is "with difficulty". However, there are a number of strategies that format creators can employ to "put their best foot forward" to protect their initial "paper" format, including: creating pitch and presentation materials that capture the distinctive features of the format (as copyright will protect those materials, albeit not the ideas within those materials); attaching the © symbol to pitch and presentation materials (which is not necessary for copyright to subsist in the materials but can nevertheless be a useful deterrent to copying); marking the materials as "confidential" (to assist in reliance on the law of confidentiality); and, where appropriate, registering the format name and logo as trade marks, registering domain names and creating social media sites. It is also possible to register a format with the Format Recognition and Protection Association (FRAPA).

If you are in a position to license a "paper" format or the format of a produced show, there are a number of issues to consider, and to ensure the option and/or licensing agreement protects your interests.

As licensor, you will generally be concerned to protect your format "brand" as an unsuccessful program in one territory has the potential to affect format sales in other territories and, at the same time, you may be concerned to ensure your rights will revert if a program is not produced by the licensee. As licensee, you will generally be concerned that you have everything you need to ensure that you can execute the format in your territory with appropriate support, but without undue restrictions, from the licensor.

There are no hard and fast rules and the deal will change depending on the format and the bargaining position of the parties, however some relevant questions to ask include: What constitutes the format rights that are being licensed (this is very much dependant on the contractual terms)?; What changes can the licensee make to the format, if any?; Will the licensor own copyright in the program, or any changes to the format (if these are permitted) made by the licensee?; Will the licensor be creatively involved in the development of the licensee's program and/or have any creative approvals?; Is the licensor or licensee entitled to register trade marks in the licensee's territory?; Who controls the merchandising rights?; What restrictions are there on the licensor's ability to license, or authorise the licence of, already produced shows based on the format in the licensee's territory?; What credits will the licensor be entitled to?; And, like any licence agreement, what is the term (often there will be an initial option period, and subsequent options which may be conditional), what is the territory or territories and the permitted media? And, of course, what are the fees and any royalties? And these are only some of the questions that should be considered by licensors and licensees....

Format licences are always a matter of negotiation and what works for a particular format or territory may not be advantageous or relevant for other formats or territories.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dan Pearce
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.