It is quite common especially in this day and age to hear that one person is accusing another of stealing their intellectual property, whether it is a song, show or book. For this piece I will be focusing solely on TV formats and whether they can be protected.
A TV format is the overall concept and branding of a show. The most common TV formats are found in reality shows and games shows, think Big Brother, Idols, Survivor etc.[1]
Between 1997 and 1999, Gwen O’Donnell drafted a screenplay called “The Funk Life” and the show centred around the lives of a small family-run funeral parlour in Connecticut. In 1998, O’Donnell got injured and was seeing a chiropractor for treatment.
During one of their sessions, O’Donnell discussed her screenplay with her chiropractor. O’Donnell’s chiropractor took interest in the story and informed O’Donnell that he knew Chris Albrecht the President of Original Programming at HBO and would pass on the script to Albrecht if O’Donnell was interested. O’Donnell agreed and gave her chiropractor a copy of her script.
Three months later, HBO solicited Alan Ball to develop “Six Feet Under”
O’Donnell sued HBO. She alleged that Six Feet Under was substantially similar to The Funk Parlor. To determine whether substantial similarities are present, it requires a detailed examination of the works themselves.
The substantial-similarity test contains an extrinsic and intrinsic component. The intrinsic test examines an ordinary person’s subjective impressions of the similarities between the two works. The extrinsic test focuses on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in the two works.
In applying the extrinsic test, the court compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.
At first glance, you might think that both shows are similar; however, the plots are different. Funk Parlor was a murder mystery, Six Feet Under was not. The latter rather focused on the intimate lives of the Fisher family. Six Feet Under explored and developed each character of the Fisher family whilst The Funk Parlor solely focused on the death of the patriarch.
Both shows explore the themes of death relationships and sex but they portray them in different ways.
“The Funk Parlor,” a murder mystery, is driven by a series of murders, which catalyze the salvation of the business. The use of death in “Six Feet Under” is quite different: there, death provides the focal point for exploring relationships and existential meaning.”
The court further compared the characters, mood, pace, dialogue and sequence of events of each work and it determined that the works have a very few similarities and that there are no substantial similarities between the two.
The court stated two important principles.
1. The first is that a court should ensure that the enquiry must only be whether “the protectable elements, standing alone, are substantially similar”.
2. Secondly, what is termed scènes à faire, material that flows naturally from generic plot-lines, are not protectable.
For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects.
Various jurisdictions have refused to grant protection for show formats based on the idea/expression dichotomy. The idea/expression dichotomy has been said to be a fundamental principle of copyright law that copyright does not extend to the protection of an idea but only the expression of an idea.
Conclusion
Can a TV format be protected, to be honest, the answer is not clear cut. A television show falls within the definition of a film and it will qualify as a broadcast, but a TV format does not fall within the definitions of either a film or a broadcast. An argument has been made that a TV format can be seen as a dramatic work and thus be granted protection but I am not convinced.
TV formats are like genres and TV shows flow from that.
It is necessary to distinguish between “expressions” on one hand and “ideas,” on the other. What is protected by copyright in a literary work is the form of expression of the literary work itself. Other things which are conveyed by or described in the literary work, of which “ideas, procedures, methods of operation etc “ are not protected.
I might be wrong but I am of the view that TV formats are not literary works as they are not “expressed” in writing (like a script or a song) but they are only expressed in execution (when the show is being shot) and even so, TV formats should not be afforded protection as that would limit innovation/creation of new shows.
