Article by Margaret Tofalides and Alasdair Bleakley

The successful invasion of US television screens by the Armani-clad Anne Robinson and her Weakest Link game show has again highlighted the lucrative potential in game show formats. The Weakest Link has been licensed to 38 countries, and the agreements are expected to generate £30m for the BBC in the next five to 10 years.

Since 1999, when the first Big Brother launched on Dutch TV, "reality TV" and gameshow formats have become big business for broadcasters. But such shows are also likely to present increasing legal challenges because they have no basic protection from copying and piracy.

While the rights in a book or piece of music can be easily identified and protected, a TV show format is less tangible. Common features of the shows include universal appeal, manipulated emotions, big prizes, intensity, slick presentation, and the "attainability" of winning.

Legal protection lies not in one simple piece of legislation but in a range of intellectual property rights. If a format is taken up by an overseas TV network, without permission, it may be difficult for the company that developed the original show to achieve redress though the courts.

TV show theme tunes, jingles, scripts and storyboards may be protected by copyright, while catchphrases and slogans may be protected by trademark registration or by an action for passing off. It could also be argued that there is copyright in the questions used in a game show, and in the technology that allows lights, questions and screens to work in sync. There might be copyright in certain parts of the scripted lines of the host, and in set design plans.

Confidential information about the manner in which the show fits together may be policed by a series of contractual undertakings between the contestants, hosts and the TV companies.

An important IP right for The Weakest Link may be the original aspects of the show, which may attract dramatic work protection. Rights in the name and logo are key and protected - important where a show has generated massive goodwill with significant exploitation - so that they are now in the process of becoming a global concept.

With the quiz show Who Wants To Be A Millionaire, production company Celador believes the name of the show is of fundamental value. The company has gone to great lengths to ensure that the logo and name are protected. The mark is registered both as a name and as a logo.

Resorting to legal action to prevent formats being copied is far from simple and there are few test cases.

Two years ago, Celador claimed that Denmark Radio had infringed the format copyright of Who Wants To Be A Millionaire by broadcasting a similar show called Kvit eller Dobbelt (Double or Quits). Denmark Radio did not contest an injunction and paid DK250,000 to settle the action. No judgment was needed, so Danish law remains untested over the issue of format protection.

However, in 1989 long before the current trend for exportable format shows began to take hold the makers of Hughie Green's Opportunity Knocks talent show unsuccessfully tried to prevent the broadcasting corporation of New Zealand from televising a similar programme. The NZBC show included the use of a "clapometer" and certain catchphrases which where, it was claimed, immediately recognisable as belonging to the Hughie Green show. The court found that the features were too indistinct to be protected by copyright, and regarded them as accessories to the performance rather than creating a unified structure or characteristic that would be capable of constituting the format of the show.

Producers are anxious ensure that they do not suffer similar problems. At last year’s MIPTV conference in Cannes, 13 companies from 11 countries launched the Format Recognition and Protection Association to investigate solutions to format piracy. The initial result was the creation of a mediation service and the launch of the first free International Television Paper Format Registry. In the UK, the Patent Office produced in 1996 a consultation paper on granting protection for format as copyright works in their own right, though there has been no proposed legislation.

Until legislation creates a discrete format right for TV shows, broadcasters and their lawyers are likely to have to be increasingly innovative in mixing and matching IP legislation to secure the protection they need.


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