Twenty Twelve is a mockumentary following the trials and tribulations of bumbling event organisers in the lead up to the London 2012 Olympic Games. The Games, which was broadcast over two successful seasons in Australia – in 1998 and 2000 – was a mockumentary following the trials and tribulations of bumbling event organisers in the lead up to the Sydney 2000 Olympic Games. Déjà vu anyone?
John Clarke and Ross Stevenson, the creators of The Games have alleged that, especially considering the personal contact they had with the creators of Twenty Twelve (including meetings, over four years of emails and the loan of DVDs of The Games), the creation of such a similar series, without their participation or permission, is a breach of their intellectual property rights.
BBC have denied these allegations, stating that Twenty Twelve is original and distinctive, that no use has been made of any material deriving from The Games, and that “its comedy is delivered through a distinctly British sense of humour”.
It is unclear exactly which rights Clarke and Stevenson allege have been breached, however it is likely they would be investigating possible protections available under copyright law and under common law for television formats.
It is well settled that copyright exists in the expression of ideas, but not in ideas themselves. As such, the idea of “a mockumentary following the trials and tribulations of bumbling event organisers in the lead up to… the Olympic Games”, may not be protectable under copyright. However, copyright clearly subsists in the cinematographic recording of each episode of The Games, the visual images and sound embedded in each episode, as well as the broadcast itself. Copyright will also subsist in each episode of The Games as a dramatic work, as well as in the script for each episode as a literary work.
Copying ideas by expressing the same ideas in a new way will not usually amount to copyright infringement. However, in the case of Zeccola v Universal Studios Inc, the Federal Court was required to analyse the infamous film “Jaws” and the lesser-known Italian film “Great White”, finding that although the idea of a “killer shark terrorizing human beings” was not particularly striking, and the general idea would not attract copyright protection, the similar combination of the principal situations, singular events and basic characters amounted to “an inescapable inference of copying”.
However, in contrast, in Channel Nine v Ninox Television Ltd, Ninox was unable to establish that Channel Nine’s show The Block bore sufficient resemblance in “mood, tone, portrayal, structure, visual and aural impact or general impression from content” to Ninox’s earlier show Dream Home.
Some elements of television shows are “scenès à faire” – characters, events or scenes that are expected or indispensible in the genre, and copyright protection is not afforded to these elements. Therefore, a mockumentary leading up to the Olympic Games would be too high level, but if there was an episode of Twenty Twelve which included the same, or a very similar, combination of unique (and not indispensible) situations, events, characters, mood, tone and scenes to The Games – there the issue becomes more finely balanced.
In Australia, there is no law which specifically protects television formats. However, as early as 1980, Australian courts have recognized that a television format can amount to valuable intellectual property. In Talbot v General Television Corp Pty Ltd, the Supreme Court of Victoria found that Channel 9 had breached the equitable duty of confidence that it owed to Mr Talbot, who had met with and submitted to Channel 9 a written program submission and pilot for a show about the development and effect of a millionaire’s riches. The Court held that Talbot had developed his concept to the stage where it was capable of being a confidential communication, and as such it was protectable as it was ‘rightly regarded as the property’ of Talbot.
This duty of confidence can be more effectively enforced if in the process of pitching television shows and formats, producers move rapidly from negotiations into contract, or at least a short confidentiality agreement, or express condition against copying or reproducing the idea. However, considering the significant power imbalance of sometimes amateur television producers pitching to major networks, this may not always be a commercially viable option.
In the absence of a contract, and once the format is no longer confidential (which in the case of The Games is possible given that the series has been in the public domain for years), the law of restitution for unjust enrichment may be available to recoup some payment for the unauthorised use of one’s format after failed pre-contractual negotiations.
Advice for Protection
So, if you’re a budding screenwriter, here are some tips to help you to protect your legal rights:
1. Come up with a creative, original and detailed format, to make copyright protection more likely. Document details of the format and the various elements which make up the show.
2. Keep good records of how the concept was arrived at. Then, if it is alleged you have copied someone else’s concept, you will be able to show that you arrived at the idea independently.
3. During production and pitching negotiations, limit disclosure, and where possible execute a confidentiality agreement to be signed before disclosing details of the show (note: this is unlikely to be possible if pitching to major networks).
4. Consider registering your format with an established registry like the Format Recognition and Protection Association (www.frapa.org). While it does not afford legal protection, it can assist in confirming the date of your claim.
5. After your show is broadcast (if only it were that easy!) consider executing short form agreements expressly prohibiting your negotiating partners from re-creating your precise format – but understand that now it is in the public arena, even minor variations can be sufficient to allow their re-creation.