Re: right of format?

On Thu, 20 Apr 2000, Michael Carroll <michael_carroll[_at_]cadc.uscourts.gov> wrote:
>
> Possibly this argument goes to distinctiveness under trademark
> principles, but assuming for the sake of discussion that this is a
> copyright suit, and knowing only the facts just presented, would
> anyone be willing to wager how such a suit would fare under U.S. law?
> Alternatively, what exactly is it that purchasers of "the format" in
> the United States have bought other than a promise not to be sued by
> Endemol for programming within the scope of the license?

I don't know what the Dutch law is, nor can I predict what the outcome in the US of a similar case would have been. But there is a New Zealand precedent, _Green v Broadcasting Corp. of NZ_ [1989] RPC 469 (NZ Court of Appeal), 700 (Privy Council), where the defendant copied a UK talent show called "Opportunity Knocks".

The plaintiff failed at both levels, essentially because copyright could subsist only a script (as a literary or dramatic work), but the script used for the show was only a skeletal outline of events with a few catchphrases, hence there was no expression for the idea of a talent show. The Privy Council also found that the format could not qualify as a dramatic work, because the script as it existed could not be capable of performance, hence there was no certainty of subject-matter (as a dramatic work).

Xiao Jinhong

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