My Copyright Rules: Seven cooked by Nine in legal pressure test

Are all reality TV cooking shows the same?

Television networks Seven and Nine were recently embroiled in legal proceedings over whether Nine’s new show, The Hotplate, is a rip-off of My Kitchen Rules.

The food fight started when Hotplate aired at the same time of Seven’s new show, Restaurant Revolution. When Seven’s offering received a lukewarm reception in the ratings, it was whisked off to a different night before Pete Evans could say ‘paleo’.

Nonetheless, Seven sought an injunction to stop Nine from showing any more episodes of Hotplate, arguing that Nine had infringed Seven’s copyright in MKR, and would further infringe if more episodes were shown.

Seven contended that it owned copyright through the following original works:

  • Literary works comprised by Seven’s format pitch, presentation, ‘Production Bible’, interview overview and shooting guide for MKR; and
  • Dramatic works comprised by “the combination and series of incidents (including situations, events and scenes), plot, images and sounds” in various episodes of MKR.

(Yet they still call it ‘reality’…)

Format wars

When deciding whether to grant an injunction, the judge had to consider the strength of the applicant’s claim and the balance of convenience between granting and withholding the injunction.

Seven argued there was a serious question to be tried that Nine had, by broadcasting episodes of Hotplate, infringed Seven’s MKR copyright.

Seven argued that Nine had taken many key elements of MKR, including:

  • A cooking competition amongst multiple pairs of contestants, each coming from a different state;
  • Teams take turns to cook in ‘Instant Restaurants’;
  • The two expert judges are established professionals within the restaurant/food industry;
  • The meal is prepared ‘against the clock’;
  • The judges have one on one discussions with the ‘host team’ about their menu choices as well as separately filmed interviews with the judge on food choice and preparation; and
  • At the end of the evening the host team receives scores from the judges, and separately, a combined score from the guest teams.

Nine pointed to the differences between the two shows, particularly that Hotplate was focused on professional restaurateurs, rather than amateur cooks.

Notably, Nine also questioned whether MKR was original in the first place – and indeed any reality cooking show. Nine brought evidence that MKR’s format was “largely unoriginal” and many of the elements have been used in other food (and non-food) reality TV programs. They pointed out that there was nothing new about having pairs compete against other pairs (like Ready Steady Cook), or having two expert judges (like The Great British Bake Off).

As Nicholas J put it, Nine’s argument was essentially that “Seven’s dramatic work is a successful, but nonetheless unimaginative collection of unoriginal ideas in a situations found in earlier reality television programs”. Ouch.

In the end though, Nicholas J found that the format of the two programs was very similar, and each of the “key elements” of MKR were common to both formats. As well, he found there was a reasonable basis for Seven to argue that, directly or indirectly, that the team developing Hotplate copied the format, or a large part of the format, used in MKR. But while he was satisfied that Seven did have a reasonably arguable case, Nicholas J held it was not a strong prima facie case.

Ultimately, Nicholas J decided not to grant the injunction, stating that the balance of convenience favoured Nine. He noted that Hotplate was a key piece of programming of Nine, which would be difficult to abruptly ‘shelve’ and then later air without any adverse consequences. Nicholas J kept in mind this was just the entrée – Seven would have the opportunity to vindicate it rights at an early final hearing, to take place later this year or early next year, before a second season of Hotplate is aired.

Out of the frying pan, into the fire

Seven’s chances at redemption at the final hearing are unclear. Reality TV formats are notoriously difficult to protect – rather than being able to rely on a clear written script, Seven will have to hope that its particular combination of elements are original enough for copyright to subsist. Nicholas J noted that a dramatic work consisting of a combination of elements brought together by the exercise of skill, judgment or labour may constitute an original dramatic work, even if some (or even most) of the elements alone would be unoriginal and therefore unprotectable. However, where only some of the elements are taken, or combined with others, the question of whether there has been an infringement of copyright can be hard to answer.

Further, even if the Court finds that Seven has enough elements for copyright to subsist, Seven will have to prove both actual copying and that the elements taken were a ‘substantial part’ of its work. It is important to note that the reproduction of unoriginal elements will not be considered as taking a ‘substantial part’ of the original work. If the court finds that the only parts that were copied by Nine were unoriginal (like those elements common to all reality TV cooking shows), there is unlikely to be infringement.

This isn’t the first time Nine has come under fire for allegedly copying a TV format. In the case of Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404, Nine was accused of copying the New Zealand show Dream Home in its show, The Block. In that case the Court concluded there was no infringement, holding that the similarities between the programs were too broad to constitute a breach. Notably, the Court held that because of the large elements of unscripted dialogue and interaction in the framework of the programs, there could be no substantial reproduction.

Seven had better start sharpening their knives if they want to impress the judges in the next round.