Reality television contains elements we have all come to expect. Cooking shows are no different. We are all familiar with the inevitable advertising break before we are told anything important. We wait for that ‘intimate’ one-on-one moment each competitor must endure with the camera, in which they debrief a cooking moment gone horribly wrong. There are winners and losers, inevitable tension, and so on.
Interestingly, despite the familiar elements of these genres, Channel Seven claims Channel Nine has copied one its own formats unlawfully, taking its broadcasting competitor to the Federal Court for a judicial umpire’s ruling on copyright infringement. Seven claims that Nine’s program, The Hotplate, has substantially reproduced features of its own program, My Kitchen Rules.
Seven might hope that the judge shares the views of some members of the court of public opinion, who aired their opinions on Twitter during an episode of The Hotplate recently.
How does copyright work in this context? What are some of the things the judge will need to think about? Well, like any TV Guide, look no further. Here is your judicial guide to likely issues the Court will consider.
How does copyright work in the context of format rather than words?
According to a report in The Australian, a spokesman for Seven said: “We believe Nine has appropriated Seven’s My Kitchen Rules original format and related production elements, and contravened copyright. That’s why we’re in court.” It appears Seven will claim The Hotplate used almost identical casting, costuming, sets, music, promotion and judging processes to MKR.
Nine has, of course, contested the allegations. “The Hotplate format is an original idea developed by Nine and we will rigorously defend the case,” said a spokesperson.
For a look at the similarities and differences between the two programs, Yahoo! 7 TV has a list here.
This does not appear to be a copyright case about the appropriation of words in a script. Nor would one expect it to be, given that much about reality television is unscripted. Accordingly, in the labyrinthine world of copyright, this does not appear to be a case about infringement of a ‘literary work’.
Rather, we are in the intriguing world of potential infringement of a ‘dramatic work’. The concept of a dramatic work is, unhelpfully, not properly defined in the Copyright Act 1968 (Cth.). Accordingly, one must look to the ordinary meaning of the expression, which tends to mean ‘a dramatic series of events’ or ‘a work of action, with or without words or music, which is capable of being performed before an audience’.
Copyright is a technical area, illustrated by the following distinction: There is no copyright in an idea, concept or theme. Rather, copyright subsists in the particular working out or expression of the idea or theme.
To help explain the difference, in the 1990s there was a highly successful advertisement for Yellow Pages phone books called ‘The Goggomobil Ad’. Played by the actor Tommy Dysart, a home handyman used the Yellow Pages to help find a part for his obscure vintage car, the Goggomobil. Using his booming Scottish accent, spelling out the name of the car over the phone ‘G-O-G-G-O’, finally, our character found what he was looking for. You could see him talking with excitement to someone on the phone who clearly knew not only the car, but its various models: “Yeah, no not the dart. Not the Dart. They always think it’s the Dart!”.
Shannons Insurance, which insures classic cars, decided to use Tommy Dysart in an advertisement reprising the Goggomobil advertisement. However, some changes were made. The car was green, not yellow. The model was a Dart, whereas in the original ad it was not a Dart. The actor did not spell the name to the person at the other end of the phone, he sounded out the name: Go-go-mob-ile…
Internal documents left the reader in no mistake that this was not an original concept:
To expropriate the man and, car in an ad for another product may at first seem to be dangerous given the ad was firmly branded as a Yellow Pages property…
The possibilities are endless. For the Yellow Pages it was just a chapter in their advertising history -for Shannons it will provide instant recognition, understanding and high memorability along with almost unlimited promotional benefits for years to come.”
Accordingly, whilst the idea of the Goggomobil ad was appropriated, including using the same actor, the expression of that idea was changed in various ways. These changes proved critical to the outcome.
Copyright gives to the owner the exclusive right to do certain things, including the right to reproduce the work in a material form. A “reproduction” includes reproduction of “a substantial part of the work”. It is a copyright infringement to do one of those exclusive rights without permission.
In other words, if a person substantially reproduces someone else’s work, here a ‘dramatic work’, without permission of the copyright owner, then that person will infringe.
The concept of copying is essential to this assessment. Independent derivation is not an infringement. Use of common themes is not an infringement. After all, much inspiration turns on what has gone before, and the courts recognize this.
The task of the court is to work out whether there is substantial similarity by copying to such an extent that a line has plainly been crossed.
To conclude discussion of the Goggomobil case, the Court found that there was a significant resemblance between the two ads. There were similarities in the enthusiast’s character, his Scottish brogue and the play on his accent and pronunciation, particularly when references are made to the “Goggomobil” or to the spelling out of any of the letters in that name.
However, these were said to be ‘common concepts or themes’ featuring a memorable character (“Mr Goggomobil”), an unusual and distinctive motor vehicle (a Goggomobil), the use of the telephone to help solve an obscure problem in relation to that vehicle and the telling of that story in a humorous manner. Those resemblances were not sufficient to constitute the “reproduction” of a substantial part of the first Goggomobil advertisement.
The Court found that there had been an “evoking or conjuring up of recollection” of the Yellow Pages advertisement, but not a taking of a “substantial portion of the applicant’s work by the respondents”.
On a disclosure note, I helped represent Yellow Pages in the Goggomobil case (Telstra v Royal & Sun Alliance 57 IPR 453). Therefore it is incumbent on me to say that Telstra had a points win overall, succeeding on the misleading or deceptive conduct part of the case, but not on this copyright aspect.
Check list for ‘Court Rules’
Here are some matters the Court will need to consider when deliberating on Seven’s claim:
- Is Seven the owner of the MKR dramatic work?
- What is the MKR dramatic work?
- What are the elements of the MKR dramatic work said to be original, as distinct from concepts, ideas or themes?
- What are the elements of The Hotseat?
- Has there been copying?
- If so, has a substantial portion been reproduced, as distinct from an evoking or conjuring up of recollection?
- Is the unscripted nature of a reality show relevant to these factors?
The influence of unscripted material in dramatic work copyright cases
Example of a win over a scripted film
Copyright enthusiasts love the Zeccola case (Giovanni Zeccola & Ors v Universal City Studios Inc  FCA 271), where the makers of Jaws did, in fact, succeed in stopping the release of another film called the ‘Great White’ in Australia. As the Court neatly put it, each was a film about a killer shark terrorizing human beings.
Counsel representing ‘Great White’ claimed both ‘Jaws’ and ‘Great White’ were genre films based on the idea of a savage monster menacing a community. It was said neither film was entitled to protection because there was no copyright in that general idea.
The judge disagreed, after conducting a very close, scene by scene comparison. An injunction was granted on the basis that the makers of ‘Great White’ infringed copyright in Jaws.
On appeal, the judge’s decision below was upheld, although it was plain that the judges were not as convinced by the similarities. In these cases, people often have different views.
Unscripted game shows harder to protect
It is one thing for courts to be able to go through a frame-by-frame analysis of two carefully scripted movies (and an underlying book) to work out if one has copied another too much. It is quite another with game shows, where there is considerable ad libbing, and unscripted action.
The concept of the “format” of a dramatic work when assessing game shows has vexed the courts in the past. Green v Broadcasting Corporation of New Zealand  2 All ER 1056, 1058 is a seminal case. Their Lordships of the Privy Council found it hard to come up with the right word to describe the dramatic work of a game show (in this case the show was called ‘Opportunity Knocks’), because of the changing material. In a talent show this might be the acts of the performers, in a quiz show the questions and answers of each contestant. Was ‘format’ the right word to describe such a flexible concept?
Their Lordships speculated whether better words might be ‘structure’ or ‘package’. They said: “This difficulty in finding an appropriate term to describe the nature of the ‘work’ in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance.”
This proved a big problem for the case, because the Court concluded that copyright protection gives a monopoly, and there must be certainty in the subject matter of such monopoly to avoid injustice to the rest of the world. Here, the subject matter of ‘Opportunity Knocks’ was “conspicuously lacking in certainty”. In the Court’s view, a dramatic work required sufficient unity to be capable of performance. In their Lordships’ view, the features claimed as constituting the ‘format’ of a game show lacked that essential characteristic.
Beware a groundless threats cross-claim
A sting to the tail of an unsuccessful action for copyright infringement is that the defendant can bring a cross-claim for ‘groundless threats’, available under the Copyright Act. Nine has experience of this, having successfully obtained relief in 2005 for groundless threats against the makers of a New Zealand show called Dream Home that had claimed that The Block was a rip off of its show (see Nine Films & Television Pty Ltd v Ninox Television Limited  FCA 1404).
There was apparently a “Dream Home Bible”, involving a strict and significant order of events, which the plaintiff relied on in that case. This order of events involved the introduction of the particular contestants in the ‘set up’ phase and the identification of the rules that would constrain them in the renovation tasks that followed. It involved a series of individual programs to be screened over the life of the series in which the task of renovation of the entire residence was shown progressively room by room and area by area.
In that case, the makers of Dream Home had claimed that common features between its show and The Block were:
- the focus on home renovation;
- episodic progression;
- the competitive elements resulting in a life-altering outcome for one of the couples;
- the audience following and comparing the efforts of the contestants and the outcome that they achieve at each stage;
- dramatic tension caused by the time and budgetary restrictions on the contestants;
- constant and continuous demonstration of the fact that the couples are amateurs undertaking a task, albeit with some assistance from time to time by professionals, constrained by their own lack of training and the tightness of their budgets;
- the events and dialogue are, to a large extent, unscripted and unanticipated by the maker of each series;
- the contestants are placed in situations where dramatic aspects emerge and are captured by the television producer;
- opportunities for editing so as to emphasise dramatic moments, with the exception of the final live episode; and
- significant opportunities for sponsor involvement in the content of the program.
Justice Tamberlin found, simply by reason of the fact that there were large elements of unscripted dialogue and interaction within the overall framework of the programs, that there could not be be any substantial reproduction. He found that the plaintiff was liable for groundless threats.
Perhaps because of such unscripted dialogue and interaction, he also noted that the drama and pressure in The Block was of a different type, mood and intensity to that in Dream Home, as was the impact on personal relationships. He considered that the emotional elements were heightened in The Block by the fact that the contestants lived in the premises. To a far greater extent, and with stronger effect than Dream Home, in his view The Block emphasised the elements of human drama, anger, sadness, joy, betrayal, triumph and despair.
Interestingly, Justice Tamberlin also considered it insufficient to form a conclusion about copying simply from a couple of episodes, deciding that it was necessary to consider the whole of the series and the importance of the relevant parts in that context. Displaying only limited enthusiasm for the reality show concept, he said: “I have subjected myself to viewing and hearing substantially all of the various productions tendered in evidence and I have weighed the similarities and differences between the programs in the light of each of the series as a whole”.
There have not been many of these ‘dramatic work’ copyright cases in Australia in the last 15 years. They are hard to win. Perhaps the industry had reached some level of understanding and acceptance about the derivative nature of these shows for a period of time.
It is therefore remarkable, and very interesting, that Seven has decided to sue this time round. It may reflect on the commercial impact of Nine’s conduct, such that the ‘powers that be’ have decided it is important to proceed, even if the risk assessment is finely balanced.
Whatever the outcome, it will be interesting and refreshing to see some fresh law on the subject.
If, once again, the unscripted aspect of the reality show concept leads the court to conclude there is insufficient certainty to find copyright infringement, it probably means that reality shows will once again be off limits for copyright litigation for a period of time. That would be very disappointing as they are great cases to be involved in!