High Court: TV formats can be protected by copyright even if elements of the shows are spontaneous or changeable

The format of such shows is capable of being classed as "a dramatic work" under UK copyright laws, according to the ruling.

Under the Copyright, Designs and Patents Act, copyright can be said to subsist in dramatic works which are "recorded", whether in writing or otherwise. 'Dramatic work' is not defined in the legislation other than where it states that the term includes a work of dance or mime. However, the scope of the concept of 'dramatic work' has been considered by courts in the UK and in New Zealand, most notably.

Mr Justice Snowden said that copyright protection applying to dramatic works cannot be said to subsist in a TV format "unless, as a minimum, there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form".

The judge said that it is possible for the format of a TV game show or quiz show to qualify for copyright protection as a dramatic work "even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode".

In his ruling, however, Mr Justice Snowden rejected claims made by Banner Universal Motion Pictures (BUMP) that the document in which the format for the TV show 'Minute Winner' was contained was a dramatic work in which UK copyright subsisted.

"Before this decision, the protection of TV formats under UK copyright law was a mere theoretical possibility rather than an established right," intellectual property law expert Emily Swithenbank of Pinsent Masons, the law firm behind Out-Law.com, said. "While the claimant was unsuccessful in this case, the High Court has both confirmed that copyright protection does extend to such works and provided helpful guidance as to when a TV format will qualify for protection." 

"Producers and other potential rights holders will need to bear in mind the need to provide sufficient detail in the documents setting out the TV format in order to meet this new test but ensure that robust confidentiality restrictions are in place to ensure that what may still prove to be an easier claim for breach of confidence can be relied upon should such information be misused," she said.

According to the judgment, BUMP claimed that the information about the format was misused by other TV companies, who it alleged were liable for infringement of copyright, breach of confidence and passing off.

BUMP claimed, in particular, that the format for 'Minute Winner' had been used to form the basis of a former ITV2 gameshow called 'Minute to Win It'. BUMP said the companies had sold rights to that gameshow in 70 countries around the world.

However, Mr Justice Snowden said there was "no realistic prospect of BUMP persuading a court that the contents of the Minute Winner document qualified for copyright protection".

The judge also rejected BUMP's breach of confidence claims on the basis that a Swedish court had already considered, and rejected, similar claims that BUMP had raised in that jurisdiction. This meant BUMP was barred from bringing those claims before the High Court. The judge said that he would have been "inclined" to rule in any case that "the information in the Minute Winner document was too vague and insufficiently developed to qualify for protection as confidential information under English law".

Mr Justice Snowden further determined that BUMP had "no realistic prospect of success" in its claim for passing off after considering that the businessman behind BUMP, Derek Banner, had failed to show that he had goodwill in relation to the Minute Winner name or format.