Who does not want to become a millionaire? Australian film and television executives have been carting their shopping trolleys overseas in search of new and exciting formats that will land them into lucrative licensing
deals. For them, the stakes are large; land a winner and sit back and watch the advertising dollars flow.
For punters and obscure writers who slave away in the hope of coming up with the latest blockbuster the stakes are equally attractive. According to reports, the going rate to license the US reality-TV show “The
Osbournes” is US$15,000,000. In fact, news reports confirm that a US -based producer, Gary Binkow, has sued rock legend Ozzy Osbourne and his wife Sharon, saying the couple stole the idea for their reality series
“The Osbournes”. According to reports of a lawsuit filed in a Los Angeles Superior Court, Mr Binkow said he met the couple and Miramax TV executives numerous times in 1999 and 2000 in relation to his idea, “a real-life docu-sitcom” without the Osbournes.
However, to create something new, original and exciting is the easy thing. The real hurdle is selling it into the studios and networks. To assume that your exciting new work will, or ought to, get licensed is to
misunderstand how studios and networks operate. Generally, they do not want to make a product so original that it could be a target for an unsung genius – they prefer to rehash old yarns and recast actors in them.
Just think. The idea that a successful young married American woman gets lulled into dangerous unchartered sexual territory seems copyrightable. But it actually describes a number of different recent films including A Perfect Murder and Unfaithful.
For copyright protection under Australian copyright law it is the details that matter. To come up with, for example, the title and general concept of a TV game show is not enough as was shown in the leading case on TV formats, Green v Broadcasting Corp of New Zealand. The case concerned Opportunity Knocks, a TV talent show that had a reasonable lifespan on British television. Hughie Green, who wrote and devised the show, got a shock when the Broadcasting Corporation of New Zealand (BCNZ) began screening its own show by reference to his title “Opportunity Knocks”. Not only was the title identical but BCNZ had taken his concept including his clap-o-meter, a device to measure audience applause, and some of his catchphrases such as “This is your show folks”.
Unfortunately for Green, the Privy Council did not agree with his argument that his copyright had been infringed. In fact, the Court did not even agree with him that his work deserved protection on the basis that there was not enough devil in the detail to be rewarded with protection.
Similarly, in the landmark decision of Nichols v Universal Pictures Corporation, the US Circuit Court of Appeal found that the movie The Cohens and the Kellys did not infringe copyright in the play Abies Irish
Rose, a play about Jewish and Irish intermarriage.
Interestingly, the Court determined that neither work deserved protection and concluded that the less developed the characters the less they can be copyrighted.
The plaintiffs might have stood a better chance of success if they had cast the Irish father as more than what the Court called “a mere symbol for religious fanaticism and patriarchal pride, scarcely a character at all”.
Rule one in copyright law is that you cannot copyright ideas because of our government’s wishes to protect free expression. Copyright protects only the expression of ideas in a material form. It is no good wandering
around with the next “Harry Potter” in your head, it has to be in material form – for instance, in a screenplay or film.
Attention to detail is not only important in creating a copyrightable work but also in protecting it. In Universal City Studios v Zeccola & Ors, the plaintiff claimed to be the owner of the copyright in the motion picture
Jaws. The case concerned whether the plaintiff’s copyright was infringed by the showing in Melbourne of a film entitled The Great White. Both covered much the same idea – a story of a shark menacing a local seaside community. As part of its defence, Zeccola argued that Jaws simply fell into a class of films based on the idea of a savage monster menacing a small community, i.e. that it was a genre film. It was therefore argued that there was no general copyright in the idea. Universal counter-argued that the similarity between the two films gave rise to an inescapable inference that Zeccola intentionally copied its film.
After spending an enjoyable weekend watching the two films, one after the other, Gray J found that all the principal situations and characters had been reproduced by Zeccola. In finding for the plaintiff, the judge
honed in on the characters in each film, including the shark. He concluded that “the shark has a singular character of its own by reason of its extraordinary strength and savagery and its presence in an unlikely area.
In each film it is a shark of the same genus and species”.
He also found commonality in a number of other elements: that in each film the central character bringing about the downfall of the shark was a local politician. In both films the politician, in turn, hired local professional fishermen to conduct the hunt. In both films the fishermen used their own helicopters. Each of the politicians had a child which in due course was taken by the shark. If that was not enough, in each film
the professional fishermen were similar in appearance – each had a slightly Scottish accent and was ultimately devoured by the shark.
Launching a copyright case in order to protect your work is a bit like the 100 metre hurdles – you are not there until you are over the line. The first hurdle is to show that the defendant had access and the opportunity
to borrow your work. This can usually be cleared and proven in many ways – for instance, by evidence of the existence of a book or performance of a play. Alternatively, by production of an executed confidentiality
agreement.
However, mere access to a work does not mean that it has been read. Similar to demo tapes at recording companies, not all scripts are read, much less passed on to a studio or network or third party for exploitation.
That nexus argument was litigated in Talbot v General Television Corporation Pty Ltd[5] where film producer “T” developed a concept for a series of television programs to be entitled To Make A Million, depicting the story of successful millionaires. On seeing the defendant, Channel 9, advertising a similar format he sued.
Evidence was put forward by a producer at Channel 9 that its show was a spontaneous original idea and that he had no knowledge of the plaintiff’s communications with the network. Further evidence was put forward
confirming that the people to whom the plaintiff had communicated his concept had not communicated that submission to the relevant people within the network.
The plaintiff counter-argued that, based on circumstantial evidence, it was highly improbable that two people could come up with the same idea within such a short space of time. Ultimately, the Court found in favour of
“T”.
Assuming successful negotiation of the first hurdle, a plaintiff must show that the two works are substantially similar. This often involves a stacking up of similarities between the works, including an examination of
themes, plots, characters, dialogue, camera work, mood, sequences etc. Or it could involve a mere visual comparison of what was made and what was taken, as occurred in Time Warner Entertainment Co Ltd v Channel 4 Television Corporation.
In that suit, the plaintiffs, as producers of A Clockwork Orange, a film about an anti-social individual prone to acts of mindless violence, sought an injunction against the defendant television corporation that wished to
broadcast a documentary about the film. After seeking the permission of the film’s director Stanley Kubrick, which was denied, the defendant obtained a copy of the film from a video shop in France, where it was
legitimately on sale, and subsequently screened the documentary.
In assessing whether the defendant company had taken a substantial part, the plaintiff put into evidence an extensive list of clips taken by the
defendant, the majority of which depicted a healthy dose of violence.
The greatest problem facing a copyright plaintiff is what the courts refer to as “scenes a faire”, which are incidents, characters or settings that are otherwise indispensable or stock standard. For example, one would
expect a film about crime in Kings Cross to necessarily contain drugs, prostitution and vermin.
The issue arose in Alexander v Haley, the 1978 copyright case in the US concerning the telemovie Roots. In that
case, the United States District Court found that the plaintiff’s work, which concerned the sombre history of black slavery in the US, would necessarily involve “attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing by slaves, the atrocity of the buying and selling of human beings and other miseries”. Because the alleged similarities between the plaintiff’s and the defendant’s works fell
into the above mentioned categories of non-actionable material, the plaintiff’s case of copyright infringement failed.
Plaintiffs also often fail because they just do not have suitable written evidence of any contractual relationship. Under Australian contract law, for a contract to exist there must be an offer made and acceptance of that offer. To try suing a studio or network on the basis of a conversation at an industry opening night or cocktail party is a doomed legal strategy.
One of the fancier aspects of copyright lawsuits is that studios will often argue that their work was not derivative of the plaintiff’s work but derivative of a whole gaggle of other works. So, while you may have sat
back in a darkened cinema and marvelled at the originality of Shrek, remember that Dreamworks could well be arguing at some later time that it was not original.
While most good money would generally be on studios in a copyright battle, courts often do not exonerate them from charges of being indolent. That is because we can often dissect most films back to a limited number of storylines such as “the buddy movie”, “boy meets girl, girl hates boy, boy woos girl” and “ordinary man in extraordinary circumstances” which (to tweak an old lyric) just serves to remind us that often in entertainment everything old is new again.
Given that there is no such thing as a “format” right at law and that format rights are traded for large sums of money, advice for protection is as follows:
1. Pitch your concept “in conference”.
2. Prepare a confidentiality agreement and have the acquirer sign it before divulging your concept.
3. Ensure that your concept is as detailed as possible – this will attract copyright protection.
4. Ensure that your format is registered with the Format Recognition and Protection Association
(FRAPA).
5. Register the slogan or title as a trade mark.
July, 2003
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