Copyright: Pleading copyright infringement in relation to TV programme formats - The Ghosts are Real case

Since the Privy Council's decision in Green v Broadcasting Corporation of New Zealand in the late 1980's, the extent to which copyright can be used as a means of protecting television programme formats has been an issue of some debate throughout the common law jurisdictions of the world. The recent judgment of the High Court in Davies v TV3 gives some guidance to those who may wish to use copyright to prevent the "cloning" of their format by others but is unlikely to be the final word on this difficult topic.

The facts of Davies v TV3 are as follows.

The first defendant (Davies) and the second defendant (Della Notte Horror Film Co Ltd) alleged that they had both "[developed and produced a format in a series of promo's [sic] for a television documentary series about ghosts called 'Ghosts are Real'". They also claimed that they owned copyright in the proposed programme by virtue of a "format" in photography, a competitive promo, and a tape of the same, a press kit given to TV3 and what was described as footage of the "Grumpy and Hirsty" story and "Nunnery footage". All of this material was said to have been created or produced and shown to TV3 employees between February and November 2000. The plaintiffs claimed that TV3 infringed their "copyright and format" in the proposed series by producing the television series "Ghosts". The plaintiff's pleaded details of claimed similarities of content, story line, camera work, editing, footage, presentation and dialogue.

The plaintiffs sought relief which included an injunction restraining TV3 from continuing to infringe by repeating or licensing others to play "Ghosts" and from producing any future television series using a similar or the same concept.

TV3 denied infringement and stated that "Ghosts" was produced not by it but by independent personnel and that the series used filming and production techniques well known in programmes of a "spooky or ghostly nature or genre".

TV3 applied for particulars of what precisely it was that was relied upon as being the plaintiffs' format.

Justice Williams held that it was not enough for the plaintiffs to plead copyright in a "format". In this regard he stated:

"In terms of Green, the plaintiffs' works must be entitled to copyright as dramatic or literary works themselves. In terms of the authorities, copyright cannot reside in 'format' alone without that additional identifying feature. At bottom, there must be a 'work' in which copyright subsists. Pleading that copyright subsists in a 'format' is insufficient."

TV3 was therefore entitled to the particulars it sought, as in Justice Williams' words it was "entitled to a pleading which particularises the works in which copyright is said to subsist".

TV3's application for particulars therefore succeeded.

Enquiries and information

For more information on copyrights or any other intellectual properties issues, please email or call Garry Williams on 64 9 916 8661.