How to prevent a TV format from being stolen?

How often do we read that a TV format has been stolen? The problem for creators of TV formats is that they often do not fully understand the legal framework they operate in, and they typically enter discussions with parties—broadcasters or production companies—who are well aware of this.

The first mistake frequently made by a creator of a TV format is to refer to the format as an “idea” or “program idea.” Broadcasters or producers gladly adopt this terminology, as ideas are not protected by copyright, making it pointless to register or record an idea.

To qualify for copyright protection, a TV format must consist of original elements. The combination of these elements must legally qualify as an “independent creation.” In everyday language: your TV format must contain an original combination of elements resulting from a creative thought.

If you have a TV format protected by copyright, it is advisable to ensure that you can later prove that you conceived the format on a certain date. For this reason, we recommend registering the TV format within our Copyrights Register (www.copyrightsregister.com).

However, after the registration of a TV format, a creator is still not fully protected. We often see cases of “cherry-picking.” This means that a broadcaster or producer uses elements from your format and mixes them with elements from another format. In such cases, it becomes challenging for the creator of a TV format to successfully demonstrate copyright infringement.

In The Netherlands the Supreme Court has determined that, in the case of TV formats, a creator not only must prove that copyright-protected features of his TV format have been copied, but also that the overall impression of the TV format and the program in question sufficiently match to evoke the same overall impression.

In other words: if elements from your TV format are used by someone else, but the overall impression of the television program is made to be different, there is no copyright infringement.

In light hereof the creator of a TV format should take the following steps to successfully protect his formats and to avoid cherry picking:

Create a clear description of your TV format.
- o Specifically describe the original elements as set out in the TV format and the way it differs from other existing formats. This transforms an idea into a copyright-protected work.
Register the developed TV format with the Copyrights Register.
- o This records the date when you conceived the TV format. Including details of how you have created the TV format.
Sign a solid Non-Disclosure Agreement (NDA) before presenting the format.
- o Ensure that the NDA also obliges a producer to keep the contents of the TV format and its individual original elements confidential.