The Block is no Dream Home - copyright and television program formats

By John Fairbairn.

Key Points:
Based on a recent Federal Court decision, copyright law continues to offer little protection of television program formats, particularly those for reality television programs. Format owners will need to look at other ways of protecting them.

There has been a proliferation in recent years of local productions of overseas programs, and in particular reality television programs - "Big Brother", "Australian Idol" and "Survivor" are prominent examples. Often local broadcasters acquire rights in the formats of these programs from their creators or owners. A recent case confirms that copyright law continues to offer little protection of television program formats, particularly those for reality television programs.

On 30 September 2005 Justice Tamberlin handed down judgment in a dispute between the Nine Films & Television Pty Ltd, which produced the well known television program known as "The Block" and Ninox Television Ltd, which asserted that it was one of the owners of the copyright in the format for a reality television program known as "Dream Home" (Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 1404). Related proceedings are on foot in the United States.

Broadly, Dream Home involved two couples competing against each other in the renovation and decoration of two old houses. The show was very successful in New Zealand.

Nine entered into an agreement with Ninox and produced and broadcast an Australian series of Dream Home. Nine was given documents by Ninox in relation to this production, such as a production bible. Although Nine initially indicated that it would produce a second series of Dream Home, it did not do so.

Eventually, Nine developed and later broadcast two series of The Block and a Mr Barbour of Nine, who had been involved in the production of Dream Home, was involved in the production of The Block. The Block involved four couples competing against each other in the renovation of four apartments in a block.

Ninox asserted that it was a joint owner of the copyright in the Dream Home format as a "dramatic work" within the meaning of the Copyright Act and that Nine had infringed the copyright in the Dream Home format by producing The Block.

The best known case about television program formats is Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056, in which the Privy Council stated that copyright will not subsist in such formats where they are no more than a general idea or concept for the program. This evokes the catchphrase that there is no copyright in an idea.

Rather than focusing on whether copyright existed in the format for Dream Home, Justice Tamberlin focused on the issue of infringement. However, it was again the conceptual nature of the format and its reliance on the ad hoc behaviour of the participants, which defeated Ninox's claim. In particular:

• The judge accepted that those involved in developing The Block, including Mr Barbour, did not consciously or unconsciously copy Dream Home. Rather, they had created an original concept;
• In looking at the issue of infringement, Justice Tamberlin considered the whole context in which the claimed similarities and differences arose and in which the characters and plot developed. In doing so, he "subjected" himself to viewing and hearing substantially all of the various programs and weighed the similarities and differences between them. Ninox had to show that the combination or series of dramatic events in The Block reproduced in a substantial way any of the situations or incidents in the Dream Home format or production.
• In this context, Justice Tamberlin found that there were significant differences between the two programs ie. there was no substantial reproduction. Significantly, he stated that "simply by reason of the fact that there are large elements of unscripted dialogue and interaction within the overall framework of the programs, there cannot be any substantial reproduction."

Justice Tamberlin then stated that "I am not persuaded that these aspects, as portrayed in the productions of the two programs, are at the necessary level of detail or bear any sufficient resemblance in mood, tone, portrayal, structure, visual and aural impact, or by way of general impression from content, to support a conclusion that there has been any substantial reproduction of the Dream Home format as submitted by Ninox in this case."

Ninox's claim for copyright infringement was therefore dismissed and it was found to have made wrongful threats of copyright infringement.

In summary, courts will consider the whole of the expression of the alleged dramatic work and in particular the combination or series of dramatic events in assessing infringement of television program formats. Where those events are unscripted or merely described conceptually, copyright law is unlikely to offer protection. Licensors of format rights will need to rely on other possible forms of protection, such as breach of confidence, misleading and deceptive conduct and passing off to protect the misuse of their formats.

Leave to appeal Justice Tamberlin's decision was granted on 10 November 2005.