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Sunday, 23 July 2006

JERRY SPRINGER GAINS VIEWER


Jerry Springer gains a new viewer

The IPKat wasn't sure what to make of Universal Studios International BV v Flextech Rights Ltd [2006] EWCA Civ 1036, a Court of Appeal decision from last Tuesday which is available on that trusty source of transcripts, BAILII. The composition of the Court was quite IP-rich, Master of the Rolls Sir Anthony Clarke being accompanied by Lord Justice Jacob and Lord Justice Neuberger (who gave the judgment for all three, having been forced to watch the programme himself).

Universal, a Dutch company, was the international licensor of the Jerry Springer TV programme. Flextech, an English company that had acquired broadcasting rights for various satellite TV channels including Living TV, broadcast Jerry Springer on Living TV under a series of one-year agreements, the last of which was known as the 1997 agreement. In 1998 Universal sought a ‘run of series’ deal for Jerry Springer, which would mean that the licensee would acquire rights and pay for them as long as the shows were broadcast nationally in the USA.

Under an agreement made in October 1998 and governed by the Dutch Civil Code, Flextech was licensed to show Jerry Springer programmes from the 1998/1999 US broadcast season and thereafter for as long as the series ran. By clause 4(a) of the agreement, that each episode of Jerry Springer should be ‘similar in content and overall production value’ to the episodes in the 1997/1998 US broadcast season. By rider 8 of the agreement,

* Flextech could make minor cuts in the episodes in order to conform with broadcasting policy on programme content;

* Flextech was not obliged to broadcast any picture that did not conform to such policy and

* Where a programme turned out to be unsuitable, Universal would deliver a substitute film, if available.

When some subsequent episodes contravened the Independent Television Commission's programme code, Flextech wrote to Universal and complained that

* the programme's contents had significantly changed over the years despite the agreement that the programme would remain substantially similar in form and substance to the 1997/1998 US season, in breach of clause 4(a), thus preventing Flextech from broadcasting certain episodes;

* since this change in content was in breach of the 1998 agreement, Flextech was entitled to dissolve the 1998 agreement.

Universal disputed the validity of the dissolution and, maintaining that the 1998 agreement continued in force, sued to enforce it. On a hearing of certain preliminary issues, Mr Justice Cooke found in favour of Flextech's interpretation of the agreement. holding that
* compliance with the ITC Code was admissible and relevant evidence as to similarity of content of the later programmes with the earlier ones;

* on the facts alleged by Flextech, a breach of clause 4(a) would be established and would be sufficient to justify dissolution under Dutch civil law;

* Rider 8 did not effect this interpretation of clause 4(a);

* Nor did Rider 8 permit a substitute episode that was a repeat of an earlier episode.
Universal appealed to the Court of Appeal, which mainly dismissed its appeal but varied it in part:
* Comparison by reference to the compliance, or degree of compliance, with the ITC Code was admissible and relevant evidence as to similarity of content;

* Cooke J's conclusion that, if the facts alleged by Flextech were made out, it would have established a sufficient breach of clause 4(a) to justify the dissolution of the agreement was at best of no use to the parties and the court at the final hearing, and at worst positively unhelpful, since it was based on the assumption that Flextech's allegations would be established but that no other facts, or even glosses on facts alleged by Flextech, would be established. Cooke J should have refused to determine those issues.

* Rider 8 did not impinge on the operation of clause 4(a): the terms of that clause applied to every episode of a series, not just to an episode that could be screened without infringing the ITC Code or other regulations. Nor did the Rider permit a substitute episode which was a repeat of a previous episode.

* Cooke J's decision would be upheld on the two issues in relation to Rider 8 and substantially upheld on the issues relating to clause 4(a), subject to the determination that, on the assumed facts, Flextech was entitled to determine or dissolve the agreement.

The IPKat has some sympathy with the trial judge's position since, had he been in it, he would probably done the same thing. He wonders whether the outcome will now be that the issue which Cooke J should have declined to determine will now end up being separately determined, with exactly the same result but more delay and expense. If Flextech is right in its allegation that
"out of a total of 194 new episodes, 61 episodes had compliance problems in that 15 episodes could not be broadcast at all because of their content (which could not be cured by editing) and 46 episodes could, after a process of editing, be broadcast but only after 2100 hours. A total of 134 episodes were suitable for broadcast at any time. By contrast, in the 2001/2002 season, out of a total of 190 new episodes, 176 episodes had compliance problems in that 41 episodes could not be broadcast at all because of their content (which could not be cured by editing), 102 episodes could, after a process of editing, be broadcast but only after 2100 hours, and 33 episodes could not be broadcast during the school holidays prior to 2100. Only 14 episodes were suitable for broadcast at any time",
then it must have been a nightmare for Flextech to deal with. Merpel is not so sure, though: the value of Jerry Springer programmes lies in their shock content and their ability to tread roughly upon precisely those sensitivities that the ITC code is there to protect. Flextech might have had a bigger objection to the programmes if they all meekly complied with the relevant standards.

Jerry Springer website here
Jerry Springer Show here
Jerry Springer the Opera here
We Hate Jerry Springer here

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