TV format right spat as Games accuses Twenty Twelve of copying

The authors of an Australian TV comedy 'The Games', a parody about the Sydney Olympic Games that originally aired on Australian television in 1998 and 2000, have claimed that the BBC mockumentary Twenty Twelve (which follows the progress or lack thereof of the crack team in charge of London's 2012 Olympic Games)substantially copied their original show.

John Clarke and Ross Stevenson say that their programme had been pitched to the BBC and that one of the eventual writers of the BBC series, John Morton had been lent a copy of the DVD of The Games. Although they admit they have themselves not seen an episode of Twenty Twelve, they say that the BBC programme, even if it does not actually copy the scripts or scenes from The Games, is based on exactly the same format. Its now with the lawyers and both sides are claiming they have a strong case - but do they?

What we have here is an original concept, scripts and show in the form of The Games. We now have a further programme, Twenty Twelve, that is based on essentially the same scenario except that it relates to a mockumentary or parody of those running the London 2012 Olympics as opposed to the Sydney Olympics.

The legal question

Has there been a copying amounting to infringement of The Games?

Copyright law exists to protect and reward creative endeavour. Its protection, as its name suggests, is based on its control over and prevention of copying of a copyright work. What is recognised as a copyright work varies slightly across jurisdictions – in the UK it is governed by the 1988 Copyright Designs and Patents Act which sets out what qualifies as a ‘copyright work’.

Under UK law there are four types of copyright ‘work’ that can be applied to television – literary (eg scripts), dramatic (stage plays/choreography), musical (theme tunes or background music), artistic (the set or stage designs). In the UK and other jurisdictions the law operates to prevent copying or, where copying has occurred, provide for damages for infringement.

In relation to these copyright works the law will not protect their underlying ideas, its protection relates to how these ideas are expressed. List it, record it or package it up and copyright protection will apply to it in its listed, packaged or recorded form. Where an idea for a particular television programme or format has not been expressed and remains as a mere ‘concept’ then it will not be recognised by copyright law.

Turning to conventional legal analysis this means that either, the television programme taken as a whole is recognised and given protection as a copyright work, or, it derives its protection through its constituent elements.

For copyright infringement to arise there would need to have been actual copying of the original work. While this is possible it seems less likely to have arisen in this case.

What is possible is that there may have been an infringement of the format rights in the original work of The Games. The concept of format rights has been around since the 1950s but it has not been until the last couple of decades and fights over high profile TV shows such as Big Brother that these rights have become recognised in law and protected by the courts.

In the current case there would - as with traditional copyright infringement - have to have been a copying of the actual format as opposed to merely the idea of the format. To establish protection in their format, Clarke and Stevenson would have to show that there was a unique combination of elements in the format they created. So if it can be shown that there has been a substantial copying or borrowing of the substantive parts of the process or the packaged format itself then the BBC could have a case to answer.

More from Sydney Morning Herald

For good information on Format Rights see the website of the IFLA - International Format Lawyers Association

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