Practical advice to protect your format
- Put it in writing
Many ideas start life as a few spoken words, the originator of which goes un-noted, and then feels hard done by a year or so down the line. Put your idea in writing and develop all aspects of it as much as possible before giving, or showing it, to anyone. You can use one of FRAPA’s services: The Format Bible Generator; it will advise you how to write it down.
- Date and identify
Whether it is conception, modification, updating or adding ideas, make sure that the date, author and those responsible for the ideas being recorded (and which idea should be attributed to who) are noted every time, on every document.
- Brand it
Develop a well defined brand identity for your format and reinforce it, where appropriate, with registered rights: titles and catchphrases may be registrable as word marks, and logos as figurative marks. In addition to trade marks, consider the registration of two-dimensional and/or even three-dimensional designs (in, for example, a set). Give thought as to the territories in which you intend to register your marks and/or designs, as this can prove to be expensive and practically, there may be no point in such registrations if you do not intend to enforce the resulting rights.
The key benefits of registration are:
- Carries with it the presumption of ownership.
- Creates a “public” date fixing the creation of the work.
- Acts as a deterrent to potential imitators .
- Is an asset of the business.
- May give greater leverage over other partners.
You could consider registering the design and your marks, connected to the format. For more advice, give us a call.
- Register it
You can deposit and register a copy of the (description of the) format itself via the FRAPA registration service = FRS with the date of receipt confirmed. Although this will not guarantee any copyright protection, if there is a dispute, it provides evidence of the date of the concept of the idea. It is also worth nothing that FRAPA has a partnership with the WIPO’s Arbitration and Mediation Centre in providing alternative dispute resolution services in the television format sector. And we offer our Format Analysis Service if you think another format looks exactly like yours.
- Paint the picture
For game shows, chat shows and reality shows in particular, it is often the visual props and set that provide the attraction. For example, the set of “Who Wants to Be a Millionaire?” is reproduced the world over and assists in creating the tension of the amphitheatre, as does the unmistakable “Countdown” clock. These should be reduced to a detailed illustration (if possible 3D) and include as many original elements of the design as possible to try to protect the look of the show as an artistic work under copyright.
- Create a paper or e-trail
The creation of a format can be a long and complicated process. Often teams of individuals develop the format to fit, for example, network or budgetary requirements. Detailed and exact specifications of the elements of the format during the entire development process should be recorded for the best possible protection.
- Make it
If the necessary funds exist, make a pilot for the program incorporating all the essential elements of the theme and design as detailed above.
- Keep it confidential
If you can, request that anyone who is to receive the format proposal signs a non-disclosure or confidentiality agreement before viewing the idea. If this proves impractical, make it clear at every opportunity that the information they are receiving is confidential and is not to be used without your authorization. Marking your format bible with a “confidential” notice its cover and in headers on each page will emphasize the confidential nature of the work to readers.
And make sure you add your FRAPA Membership logo – which you receive every year, in every mail, letter, contract etc. Others will know that you have an organization behind you who is there to help protect and to recognize formats.
- Innovate it
Continual innovation of a branded format can keep it one step in front of imitators and maintain a loyal audience. It is not unusual for formats to continue to be developed even when they have aired successfully in one territory, for example because of cultural differences between territories or because of the relevant television network in another territory demands it.
Please note that whoever adds an element to your format, licences that element back to you so that you have the right to exploit the format in its entirety.
You should also consider extending in to other markets by developing format-related spin-offs such as mobile phone based applications and board games which in turn assist in reinforcing your format’s presence. It will also reduce the danger of your format appearing as (for example) an iPhone App produced by a third party; something that happened to one of our clients until, with our assistance, the infringer was persuaded to desist.
- Network it
As well as providing valuable feedback, marketing by the use of social networking sites can be a valuable way to increase the profile of, and goodwill in, your format (which in turn, will assist establishing one of the constituent elements in an action for passing-off). Negative feedback from “fans” on a copycat format may not only ultimately contribute to an imitator’s failure, but is also useful in establishing damage to your format by an imitation in the event that legal proceedings ensue. However, ensure that marketing of your format only takes place once it has been broadcast, as disclosure before that stage is likely to lead to a loss of any confidentiality you may have had in it (see Keep it Confidential above).
- Domain name it
If you have thought of a snappy title for your new program, then register the corresponding generic and country code top level domains (such as “.com” and “.co.uk” respectively). Also, consider whether an unconventional use of a country code top level domain name could be appropriate. Examples include the widespread adoption in the industry of island of Tuvalu’s country code top level domain “.tv”, or more creatively, Apple’s registration of http://www.itun.es, using the Spanish country code top level domain , “.es”.
Consider also registering relevant usernames on social networking sites (see Network it above). Prebroadcast registration of domain names and usernames can often be a pre-emptive measure to prevent squatting, but equally, make sure that you do not become a squatter.
- Licence it
A format contract will provide better protection than the laws of intellectual property although this will only be binding between the contracting parties, not a third party. However, more importantly, the contract will give the buyers access to “know-how”, that is the knowledge and expertise required to produce the program.
A contract will also provide you with the opportunity to consider whether to incorporate various clauses, including those providing for the reference of all disputes under that contract to one of the WIPO dispute resolution procedures.
WIPO’s Arbitration and Mediation Center may, in certain circumstances, be the appropriate forum to resolve disputes, thereby avoiding the delay, uncertainty and expense of legal proceedings, particularly in an international context. For existing disputes, parties may conclude a submission agreement providing for the reference of the dispute to WIPO.
As a member; you can always ask FRAPA’s opinion as to whether you need to go to court or go for a WIPO mediation.
- Move it!
Once it is broadcast, the reality is that your format is likely to be immediately disseminated across the world via the internet, whether by legitimate or illegitimate means. Therefore, once a format has been aired in a given territory, do not give competitors an opportunity to copy it – take a proactive approach to getting your format to other territories as quickly as possible. Attendance at international trade fairs (such as MIPTV) may also assist in legitimizing the originator of the format, and may well provide a further opportunity to establish that an imitator had “direct access” to your format when seeking to establish that copying has taken place.
- Make your creative team exclusive
Often it is the know-how that buyers of formats are after and they will pay more to work with the original team that created it. It is therefore advisable to sign exclusive agreements with the people who can provide that know-how.
- Keep your house in good order
Keep a format bible containing as much detail and know-how as possible. Some format rights litigation has been based on the format bible, and starting from it as a literary work, seeks to bring an action on a rival format on the basis that it is an infringement of that copyright work. The kind of detail you should consider including is highlighted in the next point.
- Details, details, details
The more information about the program that you can reduce to written form the greater your chances of protecting the format as a literary work. Give a clear and detailed description of the show and its constituent elements during the entire development process.
It is all in our Format Bible generator, but the following information needs to be in a description of a format:
- the title;
- sample scripts;
- principal characters, names, details of characters, suitable candidates to play them;
- the set, setting or settings;
- the principal stage properties;
- the role of the presenter;
- any catchphrases that are intended to be used;
- the role of any participating professionals (e.g. psychologists, fitness experts, survival experts and a description of their role e.g. will they be seen on screen or will they just be commenting? If you have anybody suitable in mind note it);
- the role of any participating members of the public;
- the role of any celebrities;
- the notional “type” of celebrity e.g. political, mother figure, lothario; and
- the order in which different parts or sections of the “program” are to run.
- Good housekeeping – the Do’s and Don’ts
- Create a directory for the proposed program that can be accessed by all the creatives who are working on it.
- Structure the directory with relevant sub directories e.g. Format; Location; Games; Health & Safety; Scripts; Design etc.
- Save all the documents containing ideas regarding the format into the communal directory.
- Try to create in words, designs, diagrams, charts etc as expressions of your creative ideas – as the law protects the expression of ideas but not ideas themselves.
- Save /archive all emails referring to the format or program, however tenuous the link, in the central directory.
- Date and identify the author of every single document.
- Record minutes of all format/”ideas” meetings and where possible make a note of how these have informed the development of the format.
- Number and date the format documents at every single stage of development.
- Track the changes to the original format and keep a record of what has changed, when it changed why it changed and who was responsible.
- Keep a record where a proposal to modify an idea has come from an internal or external (e.g. a network department) source.
- Keep an orderly hard copy file of all format proposals that have been submitted noting to whom and when; check they are dated correctly and that credit has been given.
- If you do not intend to look at a format proposal that has been submitted by post, do not open it – simply return to sender and make a record of the same.
- If you do not intend to review it at a later stage (perhaps because of a back log), then leave it unopened in its sealed envelope and make a record of the date of receipt. Once opened, make a record of this date too.
- Delete any emails that are relevant, or could be related to the format.
- Draw too many comparisons between your new format idea and formats that are already well known and established. Although it is useful to give potential purchasers an idea as to what type of program to expect, it may aid an action against you for passing off. It is not an answer to a claim for copyright infringement to say that what has been copied is not unique to the Claimant. In considering whether there are similarities which support the inference of copying, the fact that the similarities not only exist at a high level of generality, but are also shared by works which preceded the copyright works relied upon, is a material factor that will be taken into account by the Court. If you need to draw comparisons, do it with as many programs as possible rather than just one or two.
- Save new version of your format over old. Every time the document is amended (with the exception of e.g. spelling and grammar amendments) it should be given a new version number, date and the author identified.
- The Format Code of Conduct, powered by FRAPA
FRAPA is a global organization dedicated to the understanding and respect of original formats and their creators. Protecting originality, adjudicating disputes, and providing industry-standard information and networking forums are other important areas where FRAPA seeks to advise and provide assistance to its members. Overall, FRAPA looks to serve as the conscience of the global format industry and to protect and support the business in which we all work. There is not a worldwide dedicated legal frame work that protects formats, instead we need to work according to trade rules. We call on everyone working in the format industy to abide in good standing by the principals, values and rules of behavior as described in the Code of Conduct.
- Format Free Consultancy
FRAPA offers to all members a free of charge consultancy. If you have questions that concerns formats and creation of formats; call us. And if you think your format has been infringed we will support you with good advice.
- Become a FRAPA member!!! (If you are not already)
Source: Lewis Silkin – april 2015