Anyone who has devised a television format must deploy a number of precautions to protect his or her copyright.
The focus of this article is on explaining what a TV format is and how it should be protected. Later on in the article, I also discuss how the assessment of likelihood of confusion (interference) between two formats is carried out. As a final point, I advise how protection can be enhanced through the registration of the format and its title.
For personalised advice on this topic, we recommend that you visit the intellectual property page of the site or look at the Intellectual Property First Appointment Service factsheet.
The Italian Supreme Court, lacking a legislative definition of the concept of format, usually appropriates the definition provided by SIAE (Società italiana degli Autori ed Editori – SIAE‘s official bulletin no. 66 of 1994). According to the Italian Supreme Court, the concept of a television format exists when its creator has comprehensively designed the work.
The distinctive elements of the format are indeed:
In other words, one can speak of a format when a repeatable – and sufficiently detailed – television programme structure has been designed.
The format is to all intents and purposes an intellectual work protected by copyright. However, the right only arises when the work is expressed, exhibited.
The Italian Supreme Court defines a format as “a programme outline, a plot drawn up in its essential features […] as resulting from a concise description” (See Italian Civil Cassation, Section I, 27 July 2017, no. 18633). In order to protect the idea from plagiarism, it therefore seems to us imperative for it to be first settled by means of a “concise description”.
In addition, before it is disclosed, proof of authorship of the programme idea (so-called format) must be produced. Although it is not compulsory by law, in our experience registration is rather useful to provide proof:
In conclusion, in order to protect the idea of a programme, it is necessary, on the one hand, to draw up a (sufficiently accurate) summary description of the format and, on the other hand, to preserve proof of creation in a legally effective manner.
For personalised advice on this topic, we recommend you visit the intellectual property page of the site or look at the Intellectual Property First Appointment Service factsheet.
Italian courts are increasingly dealing with cases of theft or plagiarism of television formats. And this in spite of the fact that there is a substantial “regulatory vacuum”.
The issues most frequently dealt with by the courts concern:
Television programmes, like any other work covered by copyright, often have archetypal elements ( which cannot necessarily belong to a single author). According to the Supreme Court, “infringement of a television format must be ruled out when secondary or detailed elements of the protected work are reproduced or when the similarities and conformity between two works are due to common inspiration from previous works” (see Italian Civil Cassation, Section I Sent., 13 December 2012, no. 22938).
When a lawyer deals with format what matters most is the ability to identify (on the basis of the experience accrued also in court) the relevant and structural elements of the original work. It is then necessary to verify whether those elements are actually discernible even in the work that is alleged to be plagiarism.
At last, it is essential to exclude from the assessment the elements that constitute common ground of the two works. What is a public domain cannot indeed be considered the property of a single author.
An accurate assessment of plagiarism – and of the chances of success of a possible legal action – necessarily requires the advice of a lawyer with specific experience in intellectual property matters.
Article 100 of the Italian Copyright Law provides that: “The title of the work, when it identifies the work itself, may not be reproduced over another work without the author’s consent”.
All the same, the courts have interpreted the rule, stating that: “the title is not independently protected but only insofar as it identifies the work itself” and again “there is no right to the title where the work does not exist” (See Italian Court of Appeal of Rome Jud., 02/03/2009). In this regard, if the author of the format considers that the title has its own intrinsic value, even if it is autonomous and separable from the work itself, we believe that the only useful instrument for its protection as a precautionary measure is the registration of the title as a trademark.
After all, the name of a programme is its sign of recognition and identification. Over time, the public will learn to associate the format with its name. However, before the programme is aired, it seems to us that an excellent prudential strategy is to register the programme title as a trademark.
Said registration will also perform a useful function in catalysing the contents of the format: the certificate of registration of the trademark, in fact, may well be referred to in the context of a contract of assignment or licence of the format.
In conclusion, it should be noted that, in the event of a title registered as a trademark, the assessment of the likelihood of confusion (interference) between the programme titles may legitimately disregard the comparison of the formats. As such, the author who first registers his/her programme title as a trademark will be granted enhanced protection.
For personalised advice on this topic, we recommend that you visit the intellectual property page of the site or review the Intellectual Property First Appointment Service factsheet.