No eviction for The Hotplate, but judge leaves essence of copyright opaque

By Natalie Hickey, August 8, 2015

On 6 August 2015, Nicholas J decided not to grant the Seven Network an injunction requiring its media competitor, Channel Nine, from taking its cooking reality show, The Hotplate, immediately off air. Seven claims that The Hotplate infringes copyright in its own show called My Kitchen Rules (MKR).

To help understand the issues in the case, I recommend you read my previous post ‘Court Rules: How copyright works in the #TheHotplate versus #MKR standoff’.

The litigation continues (unless Seven decides to pull the pin), with a speedy trial on the cards

Seven found to have AN arguable but not strong case

Justice Nicholas was satisfied Seven had a “reasonably arguable” case but was not convinced it had a “strong” case on its face. This proved relevant to the balance of convenience assessment, and may prove portentous if the matter goes to trial.

To test copyright infringement of reality shows, the essential question is usually whether or not the original ‘dramatic work’ has been infringed. To infringe, the original dramatic work must have been copied, and a substantial part of it reproduced (tested by its objective similarity to the original work).

In my previous post, I noted that the term “dramatic work” is not precisely defined in the Copyright Act. This leaves plenty of scope for differing interpretations when engaging in the required comparison. In the case at hand, once again the meaning of ‘dramatic work’ has been put into stark relief.

Unscripted elements not discussed

Let me mention what was not discussed. The impact of the unscripted nature of reality shows did not come up in the judgment. Courts have previously found it challenging to find copyright infringement because of this, because they cannot fix with certainty the nature of the original dramatic work when so much of a reality show is ad lib.

That this issue failed to come up does not surprise, because injunction applications can be rather quick and dirty. The parties and the judge will often focus primarily on the balancing of interests between the parties to decide whether an injunction should be granted or not. A full exploration of the legalities is often left for trial.

Structure versus dramatic effect

Instead, another copyright issue came up which was not resolved and will likely be further explored at trial, if it proceeds.

Let me introduce the concept by discussing that well known film called “Fangs”. Actually it’s not well known because it has just been made up. “Fangs” is a movie about a feral pig that lives in a swamp and terrorizes humans.   It also replicates scene by scene the action from another movie called “Jaws”. The only differences are the title, the identity of our anti-hero (one is a pig, the other is a shark), and a few necessary adjustments to deal with the swamp versus open water scenes. Even some of the lines are similar. Remember these?

Hooper: The height and weight of the victim can only be estimated from the partial remains. The torso has been severed in mid-thorax; there are no major organs remaining…

or

Mayor Vaughn: Martin, it’s all psychological. You yell barracuda, everybody says, “Huh? What?” You yell [pig], we’ve got a panic on our hands on the Fourth of July.

or

Hooper: I’m not going to waste my time arguing with a man who’s lining up to be a hot lunch.

Now rightly or wrongly, “Fangs the Feral Pig” (with a nod to the Australian classic, “Razorback”) did not make me scared to go back in the water like “Jaws”. The concept felt a bit unlikely, a little schlock, and even capable of making me laugh.

This leads to the conundrum apparent from Justice Nicholas’ judgment. Has a reality TV program crossed the line when many key structural elements may well have been copied, but due to a couple of significant changes, the overall dramatic effect is different?

Justice Nicholas introduced the issue when he stated: “The choice and arrangement of plots, characters and situations may create their own dramatic effect independent of the language in which such matters are ultimately conveyed in the finished product”. [emphasis added]

Justice Nicholas agreed with Seven that there appeared the following common elements between MKR and The Hotplate:

1. A cooking competition amongst multiple pairs of contestants, each pair coming from a different state of Australia;
2. Teams take turns to cook in ‘Instant Restaurants’ in their homes;
3. In the Instant Restaurant rounds, the other teams travel (interstate) to the home of the team whose turn it is to cook;
4. The ‘host team’ prepares and serves a three course meal for their fellow contestant ‘guest teams’ and two expert judges;
5. The two expert judges are established professionals within the restaurant/food industry;
6. The meal is prepared “against the clock” – there is a 3 hour preparation time limit;
7. The judges have one on one discussions with the “host team” about their menu choices and the challenges involved as well as separately filmed interviews with the judges on food choice and preparation;
8. The judges are seated at the head of the dining table and from there they critique each course to the host couple who stand opposite them at the other end of the dining table;
9. After each course is served, the host team returns to the kitchen to prepare their next course;
10. At the end of the evening the host team receives scores from the judges; and separately, a combined score from the guest teams;
11. All scores are tallied and the team score is added to a “leader board”; and
12. The best performing teams from the Instant Restaurant rounds progress to additional round(s) where they participate in elimination challenges and the overall winners are determined.

Justice Nicholas also expressed himself satisfied that Seven had a reasonable basis to argue copying by Nine.

However, the concept of dramatic effect was central to Justice Nicholas’s own comparison of the programs. The “one obvious difference” he observed between the format of the episodes of MKR and The Hotplate was that the contestants in MKR were not professional restaurateurs but amateur chefs who prepared and served the meals in their homes. In The Hotplate, he noted, the contestants are professional restaurateurs who prepare and serve the meals to the other contestants and the judges. The do this in their restaurants, he stated, albeit at a time when the restaurant is closed to the general public, as part of what is referred to as a “private dining experience”.

Justice Nicholas concluded: “The dramatic effect achieved in Hotplate through the use of professional restaurateurs providing meals chosen from their restaurant’s menus is arguably different from what one experiences in MKR. The fact that the contestants in Hotplate are restaurateurs (many of whom are highly experienced professionals) is a circumstance around which much of the dialogue is constructed.”

This has echoes of Justice Tamberlin’s comments in Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404 that the drama and pressure in The Block was of a different type, mood and intensity to that in Dream Home, and that the emotional elements were heightened in The Block by the fact that the contestants lived in the premises.

As I have discussed previously, Tamberlin J concluded in that case that 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.

As to whether structure trumps dramatic effect, or vice versa, this is a matter for trial.

The influence of stock elements

Nine pointed to a range of differences between the two programs, and also claimed that many of the key elements identified by Seven are, in fact, common to other food reality television programs such as Come Dine with Me, Masterchef, and The Chopping Block, and to other non-food reality television programs such as The Block, The Biggest Loser and Farmer Wants a Wife. Nine therefore claimed that the MKR format is itself largely derived from unoriginal material.

As Justice Nicholas observed, the nature of the argument that Nine proposes to advance at trial, as he understands it, is that Seven’s dramatic work is a successful but nonetheless unimaginative collection of unoriginal ideas and situations found in earlier reality television programs. He was unable to dismiss this argument as weak or inherently unlikely to succeed but concluded this must await further consideration on another day.

Balancing exercise favoured ‘no injunction’

The most influential factor against an injunction was the judge’s conclusion that it would be difficult for Nine to re-establish The Hotplate’s momentum if it was to be abruptly halted by injunction and then “shelved” for however many months it took to determine the proceeding and any subsequent appeal.

He noted, in this context, evidence from Nine that it considered The Hotplate to be a key piece of its programming to be broadcast in prime time not only to achieve high ratings for The Hotplate, but also to boost the ratings of its other programs.

Both sides, Justice Nicholas acknowledged, would have trouble proving damages, a factor which is often relevant to the balancing exercise when deciding whether or not to grant an injunction.

However, it was plain that this was a neutral factor in the end, because both Seven and Nine faced the same challenge of trying to quantify the impact of ‘eyeballs on screens’ (hardly the same as counting widget sales).

Justice Nicholas noted that if he thought Seven had a stronger case, the position might have been different.

Next steps

When a party loses an injunction, the first decision is whether to bat on, particularly when a judge has sounded a little unenthused about ultimate prospects.

Arguments against proceeding might include the fact that the judge appeared to accept Seven’s case at its highest, but still concluded there was a significant difference changing the ‘dramatic effect’ of The Hotplate. Further, this was before Seven had put its arguments about the arguably unoriginal nature of many MKR features.

Arguments for proceeding might include the prospect of discovery, in which Nine must produce its documents relevant to the case. There might be the ‘smoking gun’ changing the picture entirely.