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Tuesday, 17 November 2015

Format fight brews as Barry refuses to be silenced over the Voice

From Katfriend and occasional contributor Emma Perot comes news of a topic that leaps into the limelight for a short while and then vanishes for an age: the legal protection of TV show formats.  This time it's a Dutch dispute. Emma explains:

Talpa Media, the Dutch producers of the popular television show 'The Voice' have been accused by Irishman Roy Barry of stealing his idea for the format of the show. The claim brought in California has been dismissed on the basis of lack of jurisdiction. Barry, not one to be silenced, has been fighting an uphill battle since 2013 and says he will be pursuing the claim in the Netherlands, where Talpa Media is based.

Barry says he came up with the idea for a musical talent show where judges would not be able to see the contestants. Readers familiar with ‘The Voice’ will be aware that judges sit in large red chairs facing the audience and do not see the contestant unless they press a button, indicating their preference. Pressing this button causes the chair to swivel towards the stage, allowing the judges to see their chosen contestant.

Barry filed his idea with The TV Writers’ Vault in the USA, a website where writers post their ideas, allowing them to be viewed by TV executives. He alleges that an employee of The Entertainment Group which was subsequently acquired by Talpa Media, viewed his proposal on The TV Writers’ Vault. His claims his idea was then used by Talpa to create ‘The Voice’ of Holland and other instalments of the franchise. He sued for infringement of copyright as well as breach of contract.

Copyright Law

To bring an action for copyright infringement in the Netherlands, Barry would have to establish jurisdiction and applicable law. According to Art. 7(2) of the Brussels Regulation Recast, the claim can be tried in the place where the harmful event occurred. This should allow him to proceed in the Netherlands if the Dutch production company made the show there, as appears to be the case. As to the law, Article 8 of the Rome II Regulation states that the law of the country for which protection is claimed will be applicable.

In the Netherlands, the Dutch Supreme Court, in Castaway Television Productions v Endemol Entertainment (unreported, 2004), confirmed that TV formats can attract copyright protection. In that case, the producers of Survive! alleged copyright infringement by the producers of the infamous Big Brother. The Supreme Court found that Survive! was subject to copyright protection as the format consisted of 12 identifiable elements which were present in production as well as the format bible. However, the claimant ultimately failed due to a lack of substantial similarity between the two shows.

Barry’s position is different in that he is claiming infringement of his pitch rather than of an actual show, as was the case in Castaway Television. The likelihood of success would largely depend on how detailed the pitch was. Said the court: 
“If only one element has been copied, the situation is also clear: in that case no infringement is involved.” 
If Barry’s idea was simply an outline for a show where judges could not see the contestants, he will not succeed. The court will undertake an assessment of the elements of both works to determine the level of similarity. Considering that ‘The Voice’ would have gone through many stages of development before production, it is unlikely that there would be substantial similarity between the two concepts.

Contract Law

In addition to copyright infringement, Barry alleges breach of contract as the person who saw his idea on The TV Writers’ Vault agreed to a non-disclosure agreement (NDA). It seems that this NDA was provided by The TV Writer’s Vault as there is no indication that Barry had any personal dealings with The Entertainment Group. The TV Writer’s Vault website states that network executives who use their site agree to the “Confidentiality/Terms of Service” policy. This policy provides that site users will be given access to “proprietary and confidential information that belongs solely to the Writer” and that users “will not disclose, utilize or otherwise exploit any of the Confidential Information in any way.”

Assuming that Barry established jurisdiction under Art.7(1) of the Brussels Convention Recast which deals with contract situations, Dutch law is likely to apply to the interpretation of the terms of service according to the Rome I Regulation. Dutch law recognises Terms and Conditions as a valid, binding contract once offer and acceptance has been completed and the terms are reasonable and fair. The Entertainment Group’s employee would have accepted The TV Writers’ Vault Service Policy before gaining access to the information and would have been aware of the confidentiality requirement. Barry’s success will depend on whether ‘The Voice’ actually utilised his confidential information.

In a similar UK case, Wade v British Sky Broadcasting Ltd [2014] EWHC 634 [noted by the IPKat here], Brian Wade and Geraldine Perry brought a claim against Sky for breach of confidence. Wade and Perry alleged that after pitch meetings and email exchanges over a period of months, including the presentation of a deck of materials, Sky eventually informed them that they were not moving forward with the pitch. Sky later produced Must be the Music, a show which Wade and Perry believed to have copied many elements of their confidential pitch. Mr Justice Birss found that the information was indeed confidential but ruled in favour of Sky as he did not find any misuse of the confidential information. Barry is in a precarious position compared to Wade and Perry who had meet with Sky producers several times. Barry’s claim is based solely on his pitch which was stored on The TV Writer’s Vault as he had no interaction with The Entertainment Group or Tapla.

TV format industry
The Netherlands is one of the few jurisdictions, along with Brazil, which has explicitly stated that TV formats can attract copyright protection. In the UK, someone seeking to protect a TV format is more likely to be successful pursuing a breach of confidence action and should ensure that NDAs are used in the negotiation process. Even so, when confidential information is disclosed, the process of producing a show which requires many changes throughout stages of development can result in a finding of no misuse of confidential information.

Despite no explicit copyright protection for TV formats in the UK and the limited success of breach of confidence actions, the 2014 UK Television Exports Survey reported that TV format export business was worth £1.28bn. The absence of intellectual property rights has clearly not hindered trade in this area. With limited legal rights, why do companies invest significant amounts of money obtain franchise agreements for TV shows? Why not just copy the format? According to Bowrey  (which takes a similar legal approach to the UK), acquiring franchise rights not only reduces the risk of litigation (lack of protection doesn’t stop people from trying) but also allows access to production expertise.

Being able to speak to producers of a successful format provides insider knowledge on what works well, what causes difficulties, how audiences react to certain changes and most valuably, the actual production process. It’s much easier to have guidance in the form of experienced producers than having to figure out how to achieve the same success with knowledge just based on what is seen on TV. Also, the format may not be entitled to IP protection, but successful shows have valuable trade marks which can be used when a franchise licence is obtained. People in different countries will usually be aware of the trade mark due to international broadcasting, and are more likely to take an interest in a local franchise of an already successful show. 
Katpat to Chris Torrero for forwarding the link.

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