Recognition and protection of television format rights

By Ameet Datta and Suvarna Mandal, Saikrishna & Associates
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The “television formats” for unscripted reality shows such as “IDOL” (American Idol, Indian Idol, etc.), “Big Brother” (Bigg Boss in India), and “Who Wants to be a Millionaire?” (Kaun Banega Crorepati in India) have become “properties” capable of monetization across different jurisdictions. Though licensing of formats is common in the television industry, the challenge posed by their unauthorized use is considerable.

Ameet Datta
Ameet Datta

A basic premise of copyright protection is that while ideas are not protected under the law, the expressions of ideas are protected. Therefore, even if an idea is “novel” and “original” it would not enjoy protection under copyright law unless it is expressed sufficiently to attract such protection. In India, format rights per se have not been recognized in courts, and have instead been coupled with aspects of breach of confidentiality.

Delhi High Court, 2002

In 2002, Delhi High Court in Anil Gupta And Anr v Kunal Dasgupta And Ors granted an injunction in favour of the plaintiffs for their concept in the reality television show Swayamvar, depicting matchmaking in Indian culture, against the defendants, who based on the plaintiffs’ concept intended to launch a television programme titled Shubh Vivah.

The court held that while the idea by itself cannot have a copyright, if the idea is developed into a concept with adequate details the concept can be registered as a copyright and would be protectable as such. The unauthorized use of this concept in a competitive environment, coupled with the confidential information contained within it, therefore would amount to a copyright infringement.

Bombay High Court, 2007

Format rights paired with breach of confidential information also arose in Urmi Juvekar Chiang v Global Broadcast News Limited, decided by Bombay High Court in 2007. In this case the defendant, without the plaintiff’s licence or authorization, reproduced and adapted the plaintiff’s TV programme after the plaintiff had shared a detailed concept note of the programme with the defendant.

The court was of the opinion that the plaintiff had copyright in the concept as there was sufficient originality in the plaintiff’s concept and it had been registered with the Film Writers Association. The court granted the plaintiff an injunction to halt the defendant’s programme, holding that the treatment, format, structure, expression and presentation of the programme was similar to the literary work of the plaintiff and therefore was a clear infringement of the plaintiff’s copyright and a breach of confidential information by the defendant.

Delhi High Court, 2012

Delhi High Court in 2012 declined to grant an injunction in Twentieth Century Fox Film Corporation v Zee Telefilms Ltd & Ors, holding that the plaintiff had failed to make out a prima facie case against the defendants.

The plaintiff alleged that the defendant’s serial Time Bomb was an unauthorized copy of its serial 24, however the court found that the storyline of the plaintiff’s serial was substantially different from that of the defendant’s serial and that terrorism, which was a common theme in both the programmes, is a general topic and the plaintiff could not contend it was unique to its serial. The court further stated that similarity in presentation techniques does not warrant copyright protection as there cannot be any copyright in the manner and the format of presentation.

Suvarna Mandal
Suvarna Mandal

Though the case was decided against the plaintiff, the court laid down important principles concerning TV format rights. The court stated that in order for a work to be copied it needs to be established that a substantial part has been copied and this substantiality was a question of quality rather than quantity. Substantiality should be determined by individually examining the similarities between the programmes and then it should be considered whether the entirety of what had been copied represents a substantial part of the plaintiff’s programme.

The court also held that though there is no copyright protection for an idea, concept, principle or discovery, there may be a valid copyright in an original form of expression of an idea, concept or discovery. Another principle spelled out by the court was that a mere outline or theme is not copyrightable since it is only an idea. Also, the theme of a work, or the locale or setting of a story, is not an intellectual property. However, a distinctive and unique treatment of a plot or theme is copyrightable as a literary work or as a dramatic work.

The general rule as can be seen from the above-mentioned cases is that a television format per se is not protectable unless the “format” is expressed in sufficient detail, thereby attracting the provisions of copyright law, including being “original”. The protectability of a format nevertheless will be determined on a case-to-case basis.

Ameet Datta is a partner at Saikrishna & Associates, where Suvarna Mandal is an associate. The views expressed in this article are personal.

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