Simpsons Solicitors

What’s cooking?

August 21st 2015

The question of the extent to which television formats might be protected by intellectual property has again come before the courts – with Channel 7 taking action against the producers of a cooking reality program that it says infringes its rights.

Channel 7 broadcasts the reality television program My Kitchen Rules (MKR). That program has screened over several seasons, and has achieved high ratings. When Channel 7 saw the new reality program The Hotplate, produced by Endemol and screened on Channel 9, it became concerned that Endemol and Channel 9 had infringed its copyright in MKR. It sought an interlocutory injunction from the court to stop any continued broadcast of The Hotplate.

Channel 7’s position was based on an argument that MKR is a “dramatic work” (a category of copyright material that protects, for example, stage plays and film scripts) and that The Hotplate substantially reproduces the combination and series of plot, images, sound and incidents (including situations, events and scenes) from MKR.

Channel 7 also argued that, on balance, the court should issue an injunction to stop the continued broadcast of The Hotplate because of the damage Channel 7 would suffer if The Hotplate continued to be broadcast.

Certainly, a television format might be protected by the law of confidential information while it is still at a conceptual or development stage. However, television formats are notoriously difficult to protect once they are public – largely because intellectual property law does not protect mere ideas once they are no longer confidential.

While television and production companies trade and licence formats commercially, there are several overseas cases (including in New Zealand and the UK) in which courts have held that particular formats for television programs are not protected because what was copied was merely the ideas in the formats, and those ideas were public.

In this case, Channel 7 went to some lengths to argue that it was not seeking to protect a mere set of ideas, but to protect a “dramatic work”.

While the court held that Channel 7’s position was reasonably arguable, it declined to stop the broadcast of The Hotplate because it could not discount Channel 9’s counter-argument – including that MKR was just an unimaginative collection of unoriginal ideas and situations – as weak or as inherently unlikely to succeed. It also noted the damage an injunction would cause Channel 9, particularly as it would be difficult to re-establish “momentum” for The Hotplate if it was ordered off air for a time.

A couple of points to note:

  • the decision was only an interim decision – it did not determine as a matter of law whether or not there had been any infringement of Channel 7’s rights, but only whether or not the Endemol program should be stopped pending a full decision;
  • while ideas are not protected by copyright, the case should be watched if it goes further, as there might be some judicial clarification of how to apply the concept of a “dramatic work” in copyright law to the format for a series of individual programs; and
  • at the time of writing, we understand that Channel 7 will likely appeal the decision.

The decision is available at:

http://www.austlii.edu.au/au/cases/cth/FCA/2015/800.html 

If you want advice about the extent to which particular ideas or formats might be protected by intellectual property law (or whether a format you have conceived might have been infringed), contact copyright lawyer Adam Simpson, or Ian McDonald (Special Counsel) at Simpsons Solicitors.