Law
Hey, that's my idea
If a TV production company rejects your programme pitch and then turns it into the hit of the year, what can you do? Not much, unless you're on the ball, writes Alex Wade
Tuesday April 1, 2003
The Guardian
It's a killer idea. Even better, no one else has thought of it. You can hear yourself making the pitch to a jaded television executive, seeing his eyes light up as he realises that, yes, you are on to a winner. The fantasy continues with the executive buying the idea and turning it into the latest monster hit show. You are feted and revered, and make so much money that you can retire and write that long dreamed-of novel.
Sometimes, perhaps, it happens like this. More often than not it seems that the executive is jaded precisely because his own staff keep coming up with winning ideas. He is exhausted from the sheer weight of creativity oppressing him at every turn. He has no time even to think about your idea, still less a budget to spend on it. So instead of the lunch that transforms your life, you receive a letter that goes something like this: "Hotshot TV would like to thank you for your proposal to make a reality show based on contestants racing against the clock to build sand castles, with the winner being awarded a commission to redesign Buckingham Palace.
"Unfortunately, however, we receive a great many such proposals, and retain a dedicated staff whose job it is to think of new and vibrant TV shows. We are therefore unable to take your idea forward."
A year later you turn on the TV set to find that You're an Architect? So Build a Sand Castle is on screen, live from Weymouth beach. Top architects are on hand to judge the sand castles, before they crumble in the incoming tide, like so much televisual ephemera. Prince Charles watches benignly from a nearby deckchair, for there is not a carbuncle in sight - only the strictest of Palladian principles apply. But as for you, well, you're angry. This was your idea.
You consult a lawyer, at no little personal expense. She starts with the disappointing news that the law protects only the way in which ideas are expressed, not the ideas themselves. She tells you that if you failed to reduce your idea to "material form" when you submitted it to Hotshot, not much can be done. You say that you did indeed send in a letter, with a couple of paragraphs in which the idea was outlined. She says that the law of copyright - for it is into this labyrinthine realm that you have strayed - will not help.
Copyright will protect the words and form in which ideas are expressed but not the idea itself and, sadly, a mere sketch in a letter is no peg on which to hang a claim for infringement of copyright. You should have put it all down on paper in finite detail, covering every angle, and accompanied the proposal with an NDA.
An NDA? "A non-disclosure agreement," says your lawyer, telling you that if anything does (and this is questionable), only the law of confidence will protect an idea. You should have made Hotshot agree that everything about your proposal was confidential, before giving its people a sniff of it. They might not like it, but you would both know where you stand.
You thank your lawyer and stoically pay her rather-too-creative bill ("to advising on NDAs - £500"
. You seethe as You're an Architect? goes from strength to strength. Then, one day, you read that the producers are livid because evil broadcasters around the world are ripping off their programme. Some small solace in schadenfreude is yours.
But Hotshot's executives are not happy. As far as they are concerned, the idea was theirs from start to finish. They have worked hard to hone the format and promote the brand. How dare networks around the world pirate it? And what can be done to stop them?
The answer is very little. Successive cases in the UK and US have seen the concept of "format rights" debated, analysed and, ultimately, rejected. In 1989, a case brought by Opportunity Knocks set the precedent. Presenter Hughie Green was told by the court that his clapometer, stock phrases and other tics of the show were too nebulous to be protected by the law of copyright. New Zealand Television was free to broadcast its own version. The same happened with the US channel ABC and I'm a Celebrity - Get Me Out of Here. District Judge Loretta Preska ruled earlier this year that the show was an original format, notwithstanding its more than cursory similarities to Castaway Television Productions' Survivor. An injunction would not be appropriate lest ABC was handicapped in the ratings race with CBS, which had bought the "rights" to Survivor from Castaway.
These and similar rulings explain the sanguine approach taken by Adi Krasta, one of Albania's best-known television personalities and a senior executive with Telesport, which was launched a year ago with an initial remit of sport, sport and more sport. Krasta wanted to do something different, not to mention boost ratings as a bid for a national broadcasting licence loomed. In January this year he created Friday Night Fever.
On its first night, some 2,000 hopefuls attended auditions in the Albanian capital, Tirana, competing for the chance of a recording contract at some point in the future. Krasta says Friday Night Fever has been "a huge hit" and that its popularity is "really fantastic for Albania", which is decried as Europe's "third world country" and has only recently been open to western influences.
However, Friday Night Fever is clearly a pastiche of Popstars (or is it Pop Idol?). Point this out and Krasta smiles wryly. What, indeed, could the owners of Popstars do about Friday Night Fever? Leaving aside the intricacies of enforcement under the Albanian legal system, case law around the world indicates that format rights do not exist.
"The law does not recognise format rights," says Sean McTernan, a solicitor who specialises in broadcasting and publishing law. "But to deny that any rights at all can be claimed - as the American judge has said in the Survivor litigation - dilutes the future value of a programme once it is transmitted. There has to be some compromise."
While McTernan agrees that overseas commercial broadcasters buying the "rights" to, say, Who Wants to be a Millionaire are buying know-how rather than a recognised intellectual property right, he says that there is a need for an "acknowledgement that the fruits of someone's labour should be something the creator can exploit, which cannot be taken away readily."
As it is, this is a chancer's market, though not for long if Frapa has anything to do with it. The Format Recognition and Protection Association has been set up by industry figures "to promote the concept of formats as unique intellectual properties". Frapa has created a "format registry" for members and aims to provide "a fast, cheap and effective means of dispute resolution between format owners, producers and broadcasters where format infringement is alleged".
In effect, then, Frapa is a self-regulatory club, rather like the press complaints commission, whose members are asked to sign up and play the game.
The first rule of Frapa is that format rights do exist. As Paul Gilbert, a vice president with Columbia Tristar and a member of Frapa's steering committee, says: "If content is king, then rights are regal."
McTernan is one of many media lawyers watching with interest to see how Frapa develops. Regardless of whether it works, he agrees with its commitment to mediation. "The reality of litigating [format disputes] is a strong case of the emperor's new clothes. The same legal remedies crop up time and again, and costs are always an issue. The international dimension adds a multiplier to this part of the equation. Why not explore mediation as an alternative option?" For McTernan, mediation can provide a quick answer and help to preserve relationships, in an industry where relationships count for much.
Meanwhile, though, Tirana rocks to Friday Night Fever. And someone, somewhere, has just thought of another hit TV show. Just make sure you get it all down in writing, cover all the angles, and see if your TV executive is acronym-friendly. In today's market, he should know what an NDA is. You might even ask if he's a member of Frapa.
The following correction was printed in the Guardian's Corrections and Clarifications column, Thursday April 3 2003
Hot Shot Films, the reputable Belfast-based independent company, has asked us to make it absolutely clear that no connection was intended with the predatory fictional company Hotshot TV referred to in this article. We are happy to do that.
