WITH some 100 cases now decided worldwide — of which about 50% have been successful — there is a growing consensus that the new species of intellectual property (IP) we call format rights should be protected.
However, you still have a good chance of winning a format-plagiarism case brought against you on the grounds of copyright infringement — provided you can prove that your format is the product of a genuine creative process.
This is the view of Jonathan Coad, a partner in media brands and technology group at London-based law firm Lewis Silkin, who specialises in protecting the IP, brands and reputation of clients across the entertainment spectrum. Not only has he written several expert reports for international litigation, but he is also director of the International Format Lawyers Association (IFLA), which he founded in 2005 to provide the burgeoning formats industry with an international network of specialist TV and IP lawyers. Add this to a busy international seminar schedule, regular media appearances as an expert commentator on format rights — and wrongs — and it becomes clear that Coad’s opinion is a valuable commodity.
“The sooner you start thinking about protecting your format, the better your chance of success should you ever end up in front of a judge,” he says. “As you embark on the creative process, you should be thinking about how to protect your IP — because if you don’t, you are jeopardising your investment, your hard work and your creative capital.”
He drives his point home with an analogy: “Think of it like designing, building and marketing a very expensive car, which you then stick on the forecourt without a lock. If you’re investing vast sums of money paying people with three brains to come up with new format ideas, it makes sense to give all the legal force you can to protecting those ideas.”
Coad says that most copyright infringement cases fail through a lack of evidence of an original creative process. “Even the earliest decisions — Hughie Green’s famous claim about the format of Opportunity Knocks, for example — failed on evidence as much as on legal grounds,” he observes.
Happily, the courts are increasingly relying on expert witnesses such as Coad, who have done a great deal to educate the law on the huge sums of money now commanded by successful formats (American Idol, it is worth noting, was recently valued by Forbes at an eye-popping $2.5bn), which has served to increase the moral pressure on judges to intervene to protect their creators’ investment.
As Coad says: “Commercial law’s purpose is to give legal force to the bargains that trades people make. Trades people have now been making bargains to buy and sell television formats for 60 years, which means that, if the courts are doing their job properly, those bargains must be given proper legal protection.”
As to how format creators can maximise their chances of winning legal proceedings should somebody attempt to rip off their hit show, Coad points to his recently published report, How to Protect Your Format, which contains a handy ‘practical advice’ section (summarised below).
“I probably sent out over 100 copies of How to Protect Your Format after the FRAPA mock mediation at MIPTV,” Coad adds. “In fact, there was practically a scrum for the few reports I had with me, so I ended up taking cards from half the people in the Grand Auditorium and promising to send out copies in the mail.”
All of which goes to show that the television industry has long since worked out what the courts are slowly coming to realise: that a successful international format may be a license to print money, but a valuable format is also a vulnerable one and needs all the protection on offer.
How to protect your format:
- Put it in writing: develop all aspects of your idea as far as possible before giving or showing it to anyone.
- Give it a date and identity: ensure the data, author and those responsible for the ideas recorded are noted every time.
- Brand it: develop a well-defined brand identity for your format and reinforce it, where appropriate, with registered rights, including titles, catchphrases, logos and set designs.
- Register it: deposit and register a copy of your concept with an association such as FRAPA, with the date of receipt confirmed.
- Paint a picture of it: create a detailed illustration, including as many original design elements as possible, in order to protect the look of your show as an artistic work under copyright.
- Create a paper or e-trail: keep detailed records of the entire development process.
- Make it: produce a pilot, if the funds exit, incorporating all the essential elements of your format’s theme and design.
- Keep it confidential: ideally, request that anyone who sees the format proposals signs a non-disclosure or confidentiality agreement. If this proves impractical, stress at every opportunity that the information is confidential and not to be used without your authorisation.
- Innovate it: keep refreshing your format in order to keep one step ahead of imitators and maintain a loyal audience.
- Network it: use viral marketing and social networking to increase the profile of, and the goodwill in, your format.
- Domain name it: pre-broadcast registration of domain names and usernames can prevent ‘squatting’ — and ensure that you do not become a squatter yourself.
- Licence it: put together a format contract, which will provide better protection than the laws of IP and will also ensure that only legitimate buyers have access to the knowledge and expertise required to produce your format.
- Move it: move your format to new territories as quickly as possible, to reduce the opportunity for copying.
- Make your creative team exclusive: sign exclusive agreements with the people who can provide valuable know-how.
- Keep your house in good order: maintain a format bible containing as much detail and know-how as possible.
- Details, details, details: write down a clear and detailed description of your format and its constituent elements.