With some 100 cases now decided worldwide – of which about 50% have been successful – there is a growing consensus that the new species of intellectual property (IP) we call format rights should be protected.
However, you still have a good chance of winning a format-plagiarism case brought against you on the grounds of copyright infringement – provided you can prove that your format is the product of a genuine creative process.
This is the view of Jonathan Coad, a partner in media brands and technology group at London-based law firm Lewis Silkin, who specialises in protecting the IP, brands and reputation of clients across the entertainment spectrum. Not only has he written several expert reports for international litigation, but he is also director of the International Format Lawyers Association (IFLA), which he founded in 2005 to provide the burgeoning formats industry with an international network of specialist TV and IP lawyers. Add this to a busy international seminar schedule, regular media appearances as an expert commentator on format rights – and wrongs – and it becomes clear that Coad’s opinion is a valuable commodity.
“The sooner you start thinking about protecting your format, the better your chance of success should you ever end up in front of a judge,” he says. “As you embark on the creative process, you should be thinking about how to protect your IP – because if you don’t, you are jeopardising your investment, your hard work and your creative capital.”
He drives his point home with an analogy: “Think of it like designing, building and marketing a very expensive car, which you then stick on the forecourt without a lock. If you’re investing vast sums of money paying people with three brains to come up with new format ideas, it makes sense to give all the legal force you can to protecting those ideas.”
Coad says that most copyright infringement cases fail through a lack of evidence of an original creative process. “Even the earliest decisions – Hughie Green’s famous claim about the format of Opportunity Knocks, for example – failed on evidence as much as on legal grounds,” he observes.
Happily, the courts are increasingly relying on expert witnesses such as Coad, who have done a great deal to educate the law on the huge sums of money now commanded by successful formats (American Idol, it is worth noting, was recently valued by Forbes at an eye-popping $2.5bn), which has served to increase the moral pressure on judges to intervene to protect their creators’ investment.
As Coad says: “Commercial law’s purpose is to give legal force to the bargains that trades people make. Trades people have now been making bargains to buy and sell television formats for 60 years, which means that, if the courts are doing their job properly, those bargains must be given proper legal protection.”
All of which goes to show that the television industry has long since worked out what the courts are slowly coming to realise: that a successful international format may be a license to print money, but a valuable format is also a vulnerable one and needs all the protection on offer.
How to protect your format:
For more information on formats protection see: http://www.frapa.org/