Historiography of Interpretations of Television Format Copyright: A Political Economic Perspective

Introduction

For the past 20 years, various television formats (e.g., The Masked Singer) have been traded internationally, becoming popular products in television markets around the world. According to the “TV Formats in Europe” report in 2014, the top 100 formats generated 2.93 billion USD for European channels in 16 territories (Whittingham, 2014). In 2019, according to the “Entertainment TV Report,” which examined 91 channels in 11 countries, an average of 4 out of 10 primetime programs were formats (Glance, 2020).

The value of the format business lies in the original ideas, concepts, and know-how that can be scaled (Middleton, 2019). According to the Format Recognition and Protection Association (FRAPA), an industry pressure group for the recognition of format rights, the key to a format business is the protection of ideas as intellectual property (Gurin, 2020). However, industry professionals complain that the format business has never been more vulnerable because of the demand of channels and platforms for additional content expanded without guaranteed legal protection (Ravindran, 2019). Copyright law does not protect ideas, but rather the expression of ideas. Situated awkwardly in the idea-expression dichotomy, formats are legally protected in some countries, but not in all (Singh & Nagpal, 2011). The copyright protection of formats has never been guaranteed nor has the legal framework for copyright and its infringement been internationally harmonized. The World Intellectual Property Organization (WIPO) has not discussed formats as a separate subject for international protection (WIPO FAQs as cited in Meehan & Torre, 2011). Industry professionals have been distressed by the different rulings of various courts, which have not yielded certainty for the legal protection of formats from infringement (Gurin, 2019).

Despite uncertainty under national copyright law and the lack of a unified international copyright law, formats are considered valuable commodities in global trading. What accounts for the uncertainty in the legal protection of products that are exchanged globally and generate billions of dollars without firm legal basis?

This paper examines the development of the international governance of the television format trade, taking a political economic approach to the uncertainty of copyright protection of formats. An analysis of dispute cases in format copyright infringement shows that the legal definition of a format was proposed by the United States, the Netherlands, Australia, and Brazil in the early 2000s. Creators of formats are defined as authors whose techniques for compiling elements distinguish their creativity, thus shifting the previous understanding of a format as an idea to the expression of an idea. In addition to highlighting that ideological change, this paper argues further that the rulings on infringement are the results of a political process with a tendency to protect domestic companies rather than foreign format owners. In particular, attention is directed to a 2003 Brazilian case in which a dispute arose between Endemol, Netherlands’s international TV production company, and SBT, a Brazilian broadcaster over the copyright infringement of the Big Brother format. This case differed from others in the United States, the Netherlands, and Australia, because the court not only defined Endemol’s format as intellectual property but also found an actual infringement of the copyright. This case is considered important and successful in the television business community. The Brazilian court’s decision reflected Brazilian political and economic conditions yet is regarded as a major turning point in the governance of the format trade.

This research highlights patterns that have emerged in seemingly independent cases. In so doing, this research examines the development of international copyright through the interplay among an ideology, a territorial logic of law, and a transnational logic of capital, as expressed through actors such as multinational corporations, domestic corporations, and legal institutions.

The objective of this study is not to make a normative judgement about whether formats are eligible for copyright protection but to reveal the process that shapes the legal form of formats, thus contributing to the understanding of the power dynamics that turn intangible properties into commodities. In the more globalized and digitally integrated media industries, it is important to understand the mechanism that shapes the legal forms of intangible properties and determine the complex organization of the global flow of symbolic and money capital.

Television Formats and Copyright

FRAPA defines a television format as “an original idea, together with all other distinctive elements which together comprise the programme, including without limitation any or all of the ideas, concepts, trademarks, texts, music, graphics, structure, setting, characters, character relationships, themes, title and related know-how” (Ravindran, 2019). A television format functions as a recipe that is transferred from an originator in one territory to an adaptor in another territory who employs the format to produce a local version of an original television program (Chalaby, 2016; Moran & Malbon, 2006). For example, the “Masked Singer” format, first created in 2015 in South Korea as King of Mask Singer, has spawned more than 40 local versions (Layton, 2021) including The Masked Singer, The Masked Singer Brasil, and Maskorama (the Norwegian version).

However, no legal definition of a television format has been agreed upon. This is problematic because, without a legal definition, a format has to overcome two hurdles to earn protection as an intellectual property, which is a concept that refers “to creations of the mind—everything from works of art to inventions, computer programs to trademarks and other commercial signs” (World Intellectual Property Organization, 2020). Intellectual property rights include copyright, patents, and trademarks; when the focus is on formats, copyright is the most problematic because of the difficulty of protecting a format as a copyrighted work.

Copyright protects a literary or artistic work against infringers who misappropriate the work (Bechtold, 2013; Bergman, 2011; Gottlieb, 2011). In most legal regimes, copyright protection is “extended to the expression of an idea (or set of ideas), not to the ideas themselves” (May, 1998, p. 68). Therefore, a guiding principle of the format’s eligibility for copyright protection is this idea-expression dichotomy, which depends on whether a format is a mere idea or an expression of an idea similar to “other literary creations, such as plots, story lines, characters, and sometimes even single scenes” (Gottlieb, 2011). The rationale for the principle is that the protection of ideas would take them “out of the public domain,” hindering the creation of new content (Bergman, 2011, p. 247). Legal discussions of the conceptual distinction between ideas and the expressions of ideas subject to the television format copyright have advanced a normative project that seeks the legal justification for either expanding the copyright protection of formats or maintaining the status quo. Legal scholars have noted that a format can be protected by legally defining it as a “compilation” in the United States (Bergman, 2011; Stalnaker, 2006). A compilation is “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship” (17 U.S.C. §101). To claim copyright protection, a format originator needs to show that the format is a collection of elements in a particular arrangement.

However, even if a format can be defined as a copyrightable work, it needs to overcome a second hurdle to earn protection: proving an infringement. When there is a dispute between a format originator and the producer of an alleged copier, a court needs to determine whether the alleged copier improperly appropriated protected elements that are unique to the originator’s format by showing access to the originator’s work and a substantial similarity between the two (Bechtold, 2013; Stalnaker, 2006). While determining access is “a fact-based inquiry,” determining substantial similarity is complicated (Stalnaker, 2006, p. 174). How substantial should “substantial similarity” be? Legal scholars in the normative tradition seek methods for determining substantial similarity to protect authors’ works, but only if copyright protection would not restrict free access to ideas that other authors have introduced into the public domain (See Bechtold, 2013; Bergman, 2011; Stalnaker, 2006; Williams, 2014).

The legal studies in this normative tradition demonstrate two legal challenges to granting formats copyright protection: the legal definition of format and the proof of infringement. While these studies shed light on points of contention, they are limited to revealing how the current state of format copyright came to be. First, by employing doctrinal methods to uncover legal problems and solutions related to the copyright protection of formats, the legal studies only focus on the development of precedent and argument. A political economic analysis is needed to contextualize the two points of legal contention. Second, the legal studies focus on the development of precedent and argument in one territory. However, because a format can exist only as a format once it travels outside its country of origin, it is important to analyze the two legal contentions in the context of global political and economic interactions.

Therefore, in the next section I propose a political economic approach to copyright by focusing on theories of copyright law in capitalist states to explain the relationships among copyright law, states, and capital on the one hand and the international dimension of copyright law on the other.

Political Economy of Copyright

Critical scholarship has noted that copyright is a legal form that covers media products to prevent them from losing value and to ensure the successful exchange of value. Copyright law, therefore, “serves as an instrument of wealth that can be utilized in the cycle of capital accumulation to generate more wealth” by allowing ownership and control of content (Bettig, 1996, p. 2). However, at the same time, critical inquiry acknowledges that the legal construction of copyright is not as clear as it seems. The question, “who owns what,” is particularly problematic in the legal construction of information, communication, symbolic orders, and texts. The fluidity of property categories when applied to intangible matters arises from an unclear distinction between a private and a common property and from the difficulty of identifying the individual author of an intangible product. The property category has been challenged by the advent of new media products. Historically, the challenge was effectively overcome by the resilience of the Western liberal ideology of property—an ideology of the individual author who is a creative originator entitled to ownership of an intangible product.

Edelman (1980) studied the legal challenges that ensued when the camera, a technology of mechanical reproduction, was first invented in the 19th century. Edelman (1980) showed that photographic images at first were not considered private property because the reality that the camera mechanically reproduced was considered common property. However, the cinema industry and legal institution captured the ideology of individual creativity and transformed the photograph from a mechanically reproduced reality into a product that bore the “intellectual mark of its author” (Edelman, 1980, p. 51). Copyright involves not only legal and technical decisions to protect both the creativity of the individual and the public domain of new creations but also the moral and ideological process of creating a legal subject, the creative individual author (May, 1998, p. 70). The protection of the individual author is a long standing liberal ideology present in the Continental tradition and less overtly in Anglo-American law (Streeter, 1996, p. 259).

Streeter (1996) applied Edelman’s thoughts to the U.S. broadcasting system, examining the genesis of the copyright that protects broadcasting signals. Although broadcasting is considered an authorless medium, he argued that the whole structure of power including the legal, business, and political communities enacted the liberal ideology of individual author by creating the fiction of the corporate individual. The legal conception of the corporate individual was then supported and regulated by institutions such as the American Society of Composers, Authors, and Publishers, and the Federal Communication Commission.

Edelman and Streeter direct our attention to the creation of authorship through the resilience of the liberal ideology when the identification of an author is challenged by new media products such as film and broadcasting programs. According to Edelman and Streeter, the ideology was enacted by not only the state apparatus (i.e., the legal institutions) but also the whole structure of power, including “the legal, business, and political communities” (Streeter, 1996, p. 257) that legitimize the creation of the ownership of intangible matters.

However, the establishment of a copyright that covers media products need not to be confined to one nation-state. Understanding copyright on the international level requires recognizing the interactions between different interests through multiple institutions such as international regimes, corporations, and states.

One international regime for copyright is the Berne Convention for the Protection of Literary and Artistic Works, adopted in 1884. According to the Berne Convention, “Works originating in one of the Contracting States … must be given the same protection in each of the other Contracting States” (World Intellectual Property Organization, n.d.). If one country defines a form of creative production as a literary and artistic work within its copyright law, it is obligated to protect the same production originating in another country (Goldstein, 2001). Another regime is the World Trade Organization’s “Trade-Related Aspects of Intellectual Property Rights” (TRIPS). By incorporating the Berne Convention, TRIPS brings intellectual property into the trade regime, harmonizing the protection of intellectual property throughout the global system (Carolan, 2008; May, 2000).

However, the international regime of intellectual property rights has never been administered by a unitary institution that harmonizes national copyright laws. Some states “abide by all the latest treaty standards, while others adhere only to the lower standards of previous treaty texts” (Goldstein, 2001, p. 13). The TRIPS agreement cannot directly influence domestic laws (Macmillan, 2014); therefore, a state’s decision to grant copyright protection to foreign work “has been a trade decision” (Goldstein, 2001, p. 14).

Instead, as Kennedy (2013) advised, one needs to situate laws in the context of the global political economic structures that shape and are shaped by states and corporations because law is “the vehicle through which value is generated, captured and distributed within and between organizational and jurisdictional domains, and diverse and geographically disparate business operations are coordinated and governed” (Institute for Global Law and Policy Law and Global Production Working Group, 2016, p. 61). According to Arrighi (2005), the global political economic structure is shaped by two logics of power: a territorial logic of power and a capitalist logic of power. The territorial logic refers to the logic that “command[s] over a territory and its human and natural resources,” while the transnational capitalist logic commands economic capital that flows “across and through continuous space, towards and away from territorial entities” (p. 28). The two logics are expressed by state institutions and corporations. They are not always fused together to exert imperialist power to control a means of communication production in developing territories (cf. Boyd-Barrett, 1998; Jin, 2007). They sometimes are in conflict (Zajácz, 2012). Law plays a role in this interaction between the two logics as “a resource that state and corporate actors to mobilize and innovate” to shape the global organization of an industry (Institute for Global Law and Policy Law and Global Production Working Group, 2016, p. 78). Thus, this study conceptualizes copyright law as “a terrain for political and economic struggle” (Kennedy, 2013, p. 35) where the interaction between a territorial logic of law and a transnational logic of capital is expressed through state institutions, domestic corporations, and multinational corporations.

In sum, this literature review highlights a theoretical approach to copyright. In considering the copyright of television formats, this study examines the construction of the two points of contention as informed by a normative tradition of legal studies, namely the creation of an author and the construction of an infringement. Informed by critical scholarship, this study examines how the ideology of the author is enacted by political and economic interests, shaping the present state of uncertain legality.

This study analyzes television format copyright infringement cases from 1989 to 2010 and their political economic contexts. Since 1989, numerous format originators have filed lawsuits against alleged copycats for infringing on their copyright in various territories (Singh & Nagpal, 2011). This study examines five cases that demonstrate major turning points in the development of the television format copyright: Green v. the Broadcasting Corporation of New Zealand, Castaway Television Productions Ltd & Planet 24 Productions Ltd v. Endemol Entertainment & John De Mol Productions, Survivor Productions LLC & CBS Broadcasting Inc. v. Granada plc, Granada Entertainment USA & ABC Inc., Nine Films and Television Pty Ltd v. Ninox Television Ltd, and TV Globo & Endemol v. TV SBT. The dispute cases demonstrate competing ideas about the authorship of formats while the courts’ rulings on the cases reveal the competing interests of multiple actors. Format research (Moran & Malbon, 2006; Singh & Nagpal, 2011) indicates that initially, no court was willing to grant copyright to format owners because a format was defined as a mere idea. However, in the early 2000s, a format began to be defined as something more. By linking the five cases together, the following sections examine the patterns that have emerged from the ideological, political, and economic dynamics that have shaped the present state of format copyright.

The Legal Definition of Television Format Before the Early 2000s

Among the various disputes (See Singh & Nagpal, 2011), the first format copyright infringement dispute is a legal case involving Hugh Green, a British producer, and the Broadcast Corporation of New Zealand (BCNZ) in 1989. This case became significant as a basis for the legal definition of a television format by defining a format as a general idea. As a result, the courts were reluctant to grant authorship to format owners and thus to expand the definition of copyrighted work; instead, they supported the public interest.

From 1956 to 1978, Green produced a talent show called Opportunity Knocks for Independent Television (ITV) in the United Kingdom. The BCNZ broadcast a similar television program with the same title from 1975 to 1978 in New Zealand. Green claimed the BCNZ copied his work without his permission, thereby infringing on his copyright. Specifically, he argued that the BCNZ copied particular elements, such as the form of introduction for each competitor, the use of catchphrases (e.g., “This is your show, folks, and I do mean you,” and “It’s make-your-mind-up time”), and the use of a “clapometer” for measuring the volume of the audience’s applause for performances (Moran & Malbon, 2006, p. 131). He claimed that the scripts of Opportunity Knocks that contained these elements qualified as a literary work.

Green took the case to the High Court of New Zealand, the Court of Appeal of New Zealand, and later the Privy Council in the United Kingdom. The courts refused to protect Green’s format for two reasons. First, copyright laws did not protect a general idea but rather the expression of ideas. The courts of New Zealand argued that what Green presented as scripts “did not themselves do more than express a general idea or concept for a talent quest” (Green v. the BCNZ, 1989). Second, the New Zealand courts argued that the combination of ideas presented in a format must be the essence of a television show to be protected as a literary, dramatic, musical, or artistic work. “Essence” here refers to something that gives a literary, dramatic, musical, or artistic work a performance unity. The New Zealand courts and the UK Privy Council argued that the elements presented by Green were “unrelated to each other except as accessories” and thus lacked essential characteristics (Green v. the BCNZ, 1989).

Based on those decisions, a format was legally defined as a general idea rather than as an expression of an idea. The court asserted that a general idea is in the public domain and is not the property of an individual: there is no author and, thus, no copyright. Logically, the courts rejected the claim for infringement.

Shift in the Legal Definition in the United States, the Netherlands, and Australia

In the early 2000s, the legal definition of a television format shifted from a general idea to a compilation or combination of unprotected elements that can be protected by the copyright laws in the United States, the Netherlands, and Australia. Three format copyright infringement cases in those territories indicated that the courts had begun to interpret the format as protectable by giving the compiler authorship. The courts explained that the way elements are compiled can be original.

In 2003, Survivor Productions and CBS, which produced Survivor USA by adapting the Survivor format, argued that the U.S. version of I’m a Celebrity … Get Me Out of Here! whose format was produced by Granada and aired on ABC, infringed on the copyright of the Survivor format (Singh & Nagpal, 2011). Plaintiffs claimed that Survivor and I’m a Celebrity were similar in that both “featured individuals in remote locations, living off the land and being subjected to elimination one-by-one based on viewers’ telephone votes” (Singh & Nagpal, 2011, p. 20). The plaintiffs asked the court to stop ABC from airing I’m a Celebrity. Granada and ABC argued that the two shows were different. Finally, the dispute was resolved in the U.S. District Court for the Southern District of New York with the decision that I’m a Celebrity was different from Survivor.

More important than the ruling itself was the reasoning behind it. The court referred to Section 102(b) of the Copyright Act to make a distinction between mere ideas and the expression of ideas. However, it also addressed the elusive character of this distinction. It discussed the protectability of collections of generic ideas by referring to a 1991 precedent ruling by the U.S. Supreme Court in Feist Publications, Inc., v. Rural Telephone Serv. Co., quoting Justice Sandra Day O’Connor’s opinion:

When a compilation author has no written expression, but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection (as cited in CBS Broadcasting Inc. v. ABC Inc., 2003).

The protectability of a compilation is “limited” (CBS Broadcasting Inc. v. ABC Inc., 2003) because the purpose of copyright law is not to reward the effort of simple collecting. However, U.S. District Judge Loretta Preska reaffirmed that a compilation of facts nevertheless has copyright protection and that a format is a compilation of facts. In these decisions, the courts pointed out that the manner of compiling, including selecting and arranging facts, is an expression of ideas. Thus, the new concept of a format as a compilation of ideas entered the legal discourse, challenging the dichotomy of mere ideas and the expression of ideas.

This shift in the legal definition of a format was evident also in the Dutch case, Castaway Television Productions Ltd. & Planet 24 Productions Ltd. v. Endemol Entertainment & John De Mol Productions, 2004. In 1999, Castaway, which owned the Survive! format, claimed that Endemol’s Big Brother was a copy of Survive! In 2000, the District Court of Amsterdam argued that the Survive! format was a copyrighted work. After that decision, the Dutch Court of Appeal in 2002 and the Supreme Court of the Netherlands in 2004 upheld Castaway’s definition of a format as “a combination of unprotected elements” and affirmed that a format can have copyright protection (Challis & Coad, 2004).

This definition of a format can also be found in an Australian case, Nine Films and Television Pty Ltd. v. Ninox Television Ltd., 2005. The defendant, Ninox, was the New Zealand creator of a competition reality program called Dream Home, and also its format creator. Nine, an Australian company, entered into negotiation with Ninox to license the Dream Home format for one season in 2000, then decided later not to renew the license and instead produced its own competition reality program, The Block. In response, Ninox threatened to file a lawsuit against Nine for copyright infringement; Nine then filed a lawsuit against Ninox for groundless threats. In a ruling on the case, the Federal Court of Australia affirmed that “copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme” (Nine Films and Television Pty Ltd. v. Ninox Television Ltd., 2005).

That decision expanded the previous definition of a format as based on the notion of originality. Subsequently, that notion became a rather loose concept in U.S., Dutch, and Australian cases. According to those rulings, an original work can be found in both an author’s expression and an author’s manner of putting unprotected ideas together. As the Federal Court of Australia aptly stated, copyright law protects “the work and skill embodied in the expression of an idea” (Nine Films and Television Pty Ltd. v. Ninox Television Ltd., 2005). As a result of loosening the tie between originality and expression, the copyright of formats shifted the focus of copyright laws away from balancing authors’ rights and the public interest to the concept of “the free exchange and ability to develop ideas” (Green v. the BCNZ, 1989).

The construction of authorship through the recognition of the skills and techniques needed to compile unprotected elements as a mark of individual creativity is analogous to Edelman’s (1980) description of the creation of the photography copyright. When a property category is challenged, the resilience of the Western ideology of property prevails by the broadened notion of the originality of the format author.

Struggle Between Foreign and Domestic Corporations

Despite the shift in the legal definition of the television format in the United States, the Netherlands, and Australia, it is still not easy to pass the infringement test, which examines whether an infringement actually occurred. Without the recognition of infringement by the courts, a meaningful victory is not possible. In the United States, the Netherlands, and Australia, plaintiffs have failed to win their cases or to ban the alleged copies of their formats. The courts in those territories denied that the alleged copies of the formats infringed on the copyright because the two formats in dispute were not similar. These rulings showed a politically and economically motivated tendency to protect domestic corporations.

When the courts conducted infringement tests to determine substantial similarity between the two formats in dispute, they chose to compare the overall feel of the two. However, the notion of overall feel was too broad and subjective. In the U.S. District Court case that found no substantial similarities between Survivor and I’m a Celebrity, the judge used the method of “total concept and feel” (CBS Broadcasting Inc. v. ABC Inc., 2003) to analyze the similarities between the two formats by examining each as a whole. Referring to the decision made by the U.S. Court of Appeals in a 1995 case called “Knitwaves, Inc. v. Lollytogs Ltd.,” Judge Preska argued that examining individual elements that make up the compiled whole would be a flawed method of judging the originality of a work: “If we took this argument to its logical conclusion, we might have to decide that there can be no originality in a painting, because all colors of paint have been used somewhere in the past” (CBS Broadcasting, Inc. v. ABC Inc., 2003).

In the Netherlands, the court examined 12 elements that were alleged to have been copied and concluded that there were substantial similarities in only three of the elements (Malbon, 2003). However, the judgment’s logic on whether the nine points of difference outweighed the three points of similarity was subjective. The Supreme Court of the Netherlands made a similar argument to that of the U.S. District Court. It explained that “A general answer to the question of how many elements must have been copied for infringement to be involved cannot be given; this depends on the circumstances of the case” (Challis & Coad, 2004).

In addition, the Federal Court of Australia examined whether there was “sufficient resemblance in mood, tone, portrayal, structure, visual and aural impact” (Nine Films and Television Pty Ltd. v. Ninox Television Ltd., 2005). This “sufficient resemblance” was considered in relation to “the whole of the series and the importance of the relevant parts in that context” (Nine Films and Television Pty Ltd. v. Ninox Television Ltd., 2005).

However, the methods for testing the substantial similarity in the three cases—“total concept and feel,” and “sufficient resemblance”—are not clear standards. Nimmer criticized the “total concept and feel” test in the United States (Nimmer & Nimmer, 2009 as cited in Bergman, 2011), as too broad and subjective, unable to analyze whether infringement has occurred. Instead, these tests were driven by political and economic judgment. This is not to say that the courts consciously disregarded the evidence and made biased decisions; rather, the decisions made by the courts were vulnerable to political and economic conditions that were driven by two factors. First, owing to the international nature of a format (i.e., a format can be defined as such only after it is adapted outside its country of origin), a format copyright infringement dispute concerns the owner of a format and an alleged copycat from another country. In other words, the nationality of the plaintiff differs from that of the defendant. Second, a format copyright infringement dispute is ruled by the court of the territory of adaptation. In other words, the jurisdiction of the format infringement dispute is the country of domicile or habitual residence of the format adaptor (Xalabarder, 2002). Under these two conditions, national courts face foreign format owners and domestic adaptors.

When domestic companies are involved as both plaintiffs and defendants, the protectionist tendency of the courts is more visible. In the 2003 dispute between CBS and ABC, a protectionist tendency was hinted at by the U.S. District Court. In the conclusion, Judge Preska used “the balance of hardship test,” which weighs the harm that would be suffered by the plaintiff if an injunction were not given against the harm that would be suffered by the defendant if an injunction were granted. The court argued as follows:

If a preliminary injunction were issued … defendants would be unable to proceed with the scheduled production and broadcast of a program that is to be the centerpiece of ABC’s February 2003 sweeps offering. In turn, this would affect ABC’s programming and ratings for months ahead and interfere with its relationships with its affiliates (CBS Broadcasting., Inc. v. ABC Inc., 2003).

The district court was concerned about the economic impact its decision would have on ABC’s programming and ratings, which, according to political economists of media, are “irrelevant to the legal issues at hand” (Meehan & Torre, 2011, p. 77).

As per the American court’s ruling, the Dutch and Australian courts also protected their domestic corporations (i.e., Endemol and Nine). A new legal conception of a format and the methods for testing the resemblance between two formats in dispute led to decisions that tended to benefit or protect domestic media corporations against the interests of foreign capital. Thus, the American, Dutch, and Australian courts recognized the copyright of the formats without acknowledging the infringement. The territorial logic of law and the transnational logic of capital were in conflict, resulting in the limited protection of formats.

TV Globo & Endemol v. TV SBT

However, in 2003, a court ruling on a television format copyright infringement case in Brazil broke away from the tendency to protect domestic corporations. In that case, the plaintiffs were TV Globo and Endemol, and the defendant was TV Sistema Brasileiro de Televisao (SBT; TV Globo & Endemol v. TV SBT). The relationship began with negotiations between Endemol, a large Dutch TV production group, and SBT, the second-largest Brazilian broadcaster, to produce a Brazilian version of Big Brother. After 3 months of discussion, SBT chose not to acquire the license of the format. Endemol then entered into negotiations with Globo, the largest television network in Brazil, and decided to launch Big Brother Brazil in 2002. However, in 2001, SBT launched a similar program called Casa dos Artistas, which turned out to be a hit with more viewers than Globo. Both Globo and Endemol claimed an unfair competitive element because of plagiarism and filed a suit against SBT for infringing on the Big Brother format.

A municipal court of São Paulo recognized the copyright protection of formats. More importantly, it ruled that Casa dos Artistas was an infringement on the Big Brother format. The court ordered SBT to cease broadcasting Casa dos Artistas and awarded damages of 2.25 million BRL (1.3 million USD) to Endemol and 6 million BRL (3.5 million USD) to Globo. Although SBT appealed, the Fifth Private Law Division of the Court of Appeals of the State of São Paulo upheld the municipal court’s rulings in 2010 (TV Globo & Endemol v. TV SBT).

SBT argued that the Big Brother format could not enjoy copyright protection because it was a mere idea that did not have any “predetermined scripts, lines and dialogues” (TV Globo & Endemol v. TV SBT). However, the Brazilian court argued that a format is more than a mere idea.

First, the court emphasized that the detailed elements compiled in a format are key and require protection. It argued that the format contains not only the concept of spying on people in a house, but also detailed descriptions of the rooms, cameras, microphones, music, activities, and so on (TV Globo & Endemol v. TV SBT). The ruling established the uniqueness of the Big Brother format, distinguishing it from other formats in the genre of reality television.

Second, and more importantly, the court established the format bible as an expressed form of ideas. In the prevailing opinion, Judge Silvéro Ribeiro stated the importance of the format bible when defining a format:

… the format of the program Big Brother, known as Bible, is not a mere conception, is not only in the field of the ideas, but, rather, it stands out in a vivified work, since it combines a series of elements that characterize it de per se, as unique and particular in its composition, an inventive fruit of the human spirit (TV Globo & Endemol v. TV SBT).

As in the cases discussed above, the Brazilian court constructed the authorship of the format. However, the previously cited courts did not conceptualize the format bible as an expression of a format. Where they assumed that scripts and the produced audiovisual texts were the only expressions of a format, the Brazilian court conceived of the format bible as a material form containing a compilation of ideas. While a compiler could be an author of a format in the previous cases, in this case an author of a format bible was recognized as an author of a format. The format bible became a “fruit of the human spirit.”

Part of the reason for the ruling comes from the particularity of the Brazilian copyright law. Copyright in Brazil (Law No. 9,610/1998) is granted by the 1891 Constitution, which was heavily influenced by American constitutional thought (Mizukami et al., 2010). While the U.S. Constitution clearly stated the purpose of copyright was “to promote the Progress of Science and useful Arts” (Article I, § 8(8)), Brazil’s 1891 Constitution did not provide a clear goal for the right (Mizukami et al., 2010) but only stated, “Authors are granted an exclusive right on the reproduction of their artistic and literary works through the printing press or other mechanical processes. The authors’ heirs will be allowed the same right for a period of time established by law” (Article 72, paragraph 26). As a result, the discussion of copyright in Brazil predominantly concerns natural rights rather than other rationales (Mizukami et al., 2010).

Third, regarding the originality of the Big Brother format, Judge Ribeiro did not simply consider the Brazilian version of Big Brother alone. He wrote as follows:

There is originality in its creation, when the program is compared to others already launched by the television stations worldwide. So much so that, in the other countries where the model Big Brother was produced, the respective stations obtained the authorization of the appropriate party (TV Globo & Endemol v. TV SBT).

The court compared Big Brother Brazil with other versions of Big Brother that had been produced in other countries and argued that there was a “Big-Brother-ness” common to all versions, contained in a format bible. It is interesting that the court recognized the format, regardless of whether its produced audiovisual text was identifiable, as original, thus legitimizing a prototypical model as a work of human spirit. This is a peculiar way of testing originality. Other courts mentioned in this study examined only formats that had been produced in the relevant country, disregarding versions produced in other countries. The ruling legitimized the originality of Big Brother Brazil and recognized the global organization of the format business, which creates a global value chain that extends from creation and distribution to production in various local television markets.

Moreover, the court also had concluded there was, in fact, an infringement. The court pointed out that SBT had registered Casa dos Artistas at the Copyright Office of the National Library Foundation on August 15, 2001, which was after the date of access to the Big Brother format bible during its negotiations with Endemol on September 4, 2000 (TV Globo & Endemol v. TV SBT). The court not only undermined the independence of Casa dos Artistas but also validated the value of the information in the bible by emphasizing its significance as source of “technical, economic, commercial and operational guidelines” (TV Globo & Endemol v. TV SBT).

To summarize, the Brazilian case is analytically significant because it granted copyright protection to a format by conceptualizing a format bible as the literary work of an author, just like a script. Contrary to the rulings of other courts, the Brazilian courts recognized that the global organization of the format industry legitimized the business model that Endemol pursued. Finally, the Brazilian ruling deviated from the protectionist tendency discussed in the previous section. It is noteworthy that the court took out an injunction against a domestic media corporation.

Discussion and Conclusion

It is well known in the industry and by scholars that the legal definition of a television format has not been firmly and uniformly established across territories (Meehan & Torre, 2011; Rubin, 2005). However, unlike previous research, this study demonstrates that the legal definition of a format has in fact changed in the early 2000s from a mere idea to a compilation of ideas that can be subject to copyright in the major television-exporting countries. The recognition of the compiler as an author demonstrated the resilience of the ideology of the creative individual. The courts in the United States, the Netherlands, Australia, and Brazil have all legitimatized the argument that the skill of compiling mere ideas bears the creativity of an individual.

However, more importantly, this study emphasizes the processes of constructing infringement in the series of rulings in the five cases in New Zealand, the Netherlands, the United States, Australia, and Brazil from 1989 to 2010. This study claims that the legal form of the format did not emerge naturally but was created through political and economic forces, which enacted the ideology of a creative individual author. The findings of this study are summarized in Table 1.

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Table 1.

Summary of Findings.

Year	Case	Conceptualization of a television format author	Construction of infringement	Country of an originator—Country of an alleged adaptor	Country of adjudication	Forms of interaction between territorial logic of law and transnational logic of capital
1989	Green v. the Broadcasting Corporation of New Zealand	No authorship	Not applicable	UK—New Zealand	New Zealand	Conflict
1999–2004	Castaway Television Productions Ltd & Planet 24 Productions Ltd v. Endemol Entertainment & John De Mol Productions	A compiler of unprotected elements is an author	No infringement	UK—Netherlands	Netherlands	Conflict
2003	Survivor Productions LLC & CBS Broadcasting Inc. v. Granada plc, Granada Entertainment USA & ABC Inc.	A compiler of facts is an author	No infringement	UK and US—UK and US	US	Conflict
2005	Nine Films and Television Pty Ltd v. Ninox Television Ltd	A person who combines situations, events, and scenes, which constitute the particular working out or expression of the idea, is an author	No infringement	New Zealand—Australia	Australia	Conflict
2003–2010	TV Globo & Endemol v. TV SBT	An author of a format bible, which combines a series of elements	Infringement upon the originator’s format	Brazil and Netherlands—Brazil	Brazil	Fusion

One can point to the court cases as occurring sporadically and independently of each other. However, by linking them together and highlighting patterns that emerge from the history of the legality of the format, this study makes three major points.

First, this study shows that courts adjudicated copyright infringement disputes in the country of the alleged adaptor of a format as opposed to the country of the originator of the format. Originators filed lawsuits against alleged copycats for infringing the copyright of their formats in the country of the alleged copycats, hoping that the rulings might ban the airing of the alleged copies. This implies that the cases pitted foreign corporations against domestic corporations from the courts’ points of view. The disputes allowed the territorial logic of law and the transnational logic of capital to interact.

Second, the interaction between the two logics often led to rulings that favored domestic corporations by acknowledging the copyright of a television format without acknowledging infringement; thus, these rulings were based on economic considerations. By not acknowledging infringement, the courts could protect the domestic corporations. This is particularly evident in the US case. When the court had to face both foreign and domestic corporations as plaintiffs and defendants, it found a way to protect the domestic corporations by not acknowledging the infringement. When the territorial logic of law and the transnational logic of capital were in conflict, courts tended to uphold the national interest by limiting the power of transnational capital, resulting in the uncertain protection of formats.

Third, national interest should not be interpreted as a fixed concept of protectionism. The Brazilian case is exemplary. Both the legislature and the court seemed to have a shared the idea that it was in the nation’s best interest to revive the media sector by attracting foreign investment. The Brazilian case does not represent a victory of transnational capital in the struggle with a state. In the context of the struggle between an international company and a state institution, the copyright laws still functioned to serve the interest of the state, but in a different way. The ruling recognizing the copyright of Endemol’s format could be read as the state’s will to create a modern media market that provided more certainty for its potential foreign investors. Banning one show, SBT’s Casa Dos Artistas, would be a small sacrifice compared to the potential gain from future investments. In the end, the fusion between the territorial logic of law and the transnational logic of capital enacted a new commodity form of format—the format bible. Since then, the format community has emphasized that the format bible is a shield to protect creators of formats from copycats, shaping the governance of the global television format value chain (Singh & Nagpal, 2011; TheWit, 2016).

In conclusion, this study situates copyright in a global political economic context by examining both the creation of authorship and the construction of infringement. Legal institutions provide an ideology of the creative individual that legitimates an interpretation of intangible properties when a new media product challenges the principle of the idea-expression dichotomy. In addition, it can be inferred that the ideology is enacted by interactions between the territorial logic of law and the transnational logic of capital. Thus, the uncertainty of the television format copyright demonstrates that copyright is not the invincible arm of imperialist economic forces but a terrain of political and economic struggle where local rules not only regulate but also create and transform the global organization of the format business.

There are two implications for future studies. First, this present study informs a theoretical approach to investigate the intangible properties of global media industries. As media industries become more globalized and digitally integrated, transnational exchanges of creative ideas have become significant to sustaining media industries across territories. This study urges future studies to focus on the dynamics of global political economic forces that enact legal interpretations of intangible properties and on local rules that change the global organization of media industries.

Second, this present study has a limitation in its methodological approach to the investigation of the evolution of the legality of intangible properties. While this study has the merit of striking a middle ground between the global and the local by linking cases in various territories, it sacrifices the deeper historical analysis of the development of the legal system of a specific territory. Future studies may draw more linkages between legal institutions—executive, legislative, and judiciary—and corporations in two or three specific territories to historically analyze the construction of various intellectual property rights in the global media business.