No copyright protection for Come Dine With Me television format
ITV Studios Ltd (ITV S) and its affiliate ITV Global Entertainment Ltd (ITV G), an international distributor and licensor of television formats, together with Viasat and Swedish production and distribution company Silverback AB, held rights to the television format for programme Come Dine with Me.The first programme was broadcast on Channel 4 in the United Kingdom in 2005 and was followed by nine seasons on Channel 4 until 2009. In 2007 Monster Entertainment AS became Silverback’s exclusive partner for the Norwegian market. Both companies intended to promote the formats in which Silverback had licence rights. The cooperation agreement was terminated by Monster in October 2008, in conjunction with an intended sale of the company.
At that time, Norwegian television channel TVNorge AS (TVN) had entered into an option agreement with Silverback that gave TVN an exclusive right to acquire the Come Dine with Me format, so that it could produce its own programmes based on the format. TVN’s option was open for a period of eight weeks. The idea was for Monster to produce the series. For this reason, Monster received copies of episodes of the English version of Come Dine with Me and hard copy of the Come Dine with Me production bible.TVN obtained the production budget for one episode of the Swedish version of Come Dine with Me, copies of some episodes of the Swedish Come Dine with Me series and ratings available to the general public. However, TVN turned the project down and in February 2009 Silverback entered into a similar option agreement with Viasat. Monster was a business partner of Silverback and was involved in the Viasat plans.
However, Monster and Silverback did not agree on the terms of the project and Silverback told Monster that it would not be asked to produce Come Dine with Me for Viasat. However, on its part Viasat was not opposed to Monster being the producer.
In the meantime, TVN had seen TV2 Hungary’s programme Fish On The Cake and, having learnt about the disagreement between Monster and Silverback, approached Monster to explore the possibilities of making a Norwegian version of Fish On The Cake. At the end of May 2009 a Norwegian daily newspaper published an article about a series called Dinner At My Place which TVN intended to broadcast in Autumn 2009. The show was later renamed 4-stjerners middag halv aatte (4-Star Dinner at 7:30). A dispute developed between TVN and Viasat as to whether TVN’s production and broadcasting of 4-Star Dinner at 7:30 constituted copyright infringement of the Come Dine with Me format. ITV G joined in and the correspondence developed between these parties.
On 10th August 2009 TVN broadcasted the first episode of 4-Star Dinner at 7:30; on 17th August 2009 and another channel, TV3, began to broadcast the show based on Come Dine with Me, with the Norwegian title Klokka aatte hos meg (8 O’Clock At My Place.
At the end of August 2009 ITV S, ITV G, Silverback and Viasat filed an action for a preliminary injunction to have TVN and Monster discontinue all further marketing, production and broadcasting of 4-Star Dinner at 7:30. The injunction was not granted. The plaintiffs appealed the district court ruling, but the appeal was dismissed by the Borgarting Court of Appeal. The appeal court did not discuss the merits of the case, but found that granting the injunction would be a disproportionate measure based on the circumstances. In Spring 2010 TVN aired another 52 shows of 4-Star Dinner at 7:30.
In January 2010 the plaintiffs brought a main action before the Oslo District Court. The trial was held in early September and the judgment was passed on 4th November 2010.
The plaintiffs relied on copyright law and the unfair competition provisions of the Norwegian Marketing Control Act.
With regard to copyright law, the plaintiffs contended that TV formats can qualify for protection as copyrighted works, and that Come Dine with Me had acquired a recognisable character with which third parties were familiar. They argued that the Come Dine with Me format was clear and gave definite directions as to how the show should be built up, with fixed items or content. The composition and combination of the elements in the format gave the work originality and distinctive character. Through the numerous similarities, 4-Star Dinner at 7:30 gave the impression of being “the same creation” as Come Dine with Me. The plaintiffs claimed that the few differences between them should be considered to be unlawful amendments to a protected work. As to the defendants’ claim that their series was based on the Fish On The Cake format, the plaintiffs argued that Fish On The Cake was not an independent work, and that 4-Star Dinner at 7:30 was closer to Come Dine with Me than to Fish On The Cake. Further, plaintiff ITV S had reacted promptly against the Fish On The Cake productions.
With regard to unfair competition, the plaintiffs claimed that 4-Star Dinner at 7:30 was a copy of Come Dine with Me, and an unreasonable exploitation of the plaintiffs’ efforts and results. They also claimed that the copy and the original format were confusingly similar. Further, the plaintiffs relied on Section 25 of the Marketing Control Act, whose scope is wider, they claimed. This provision is drafted to catch all acts that are contrary to good business practice.
The defendants denied all of the plaintiffs’ claims.
District court ruling
Having noted that there is no Norwegian case law on the issue of copyright protection for television formats, and that the leading academic authors on IP law appear to be somewhat sceptical about the idea, the district court concluded that a strict norm should be applied when determining whether a format qualifies as a work protected by copyright. The district court emphasised that international harmonisation is an important consideration in copyright law before it mentioned certain foreign court decisions, such as the German Federal Court’s decision in the Kinderquatsch mit Michael case, and two Danish lower court decisions in interim injunction cases, which all concluded that there was no copyright infringement of the formats. The district court also mentioned the Dutch advocate general’s opinion in the Survivor case, but said it was of little importance as a source of law when deciding the case in hand.
The district court then set out the test to apply. The decisive issue is whether the idea has materialised into a work that expresses an original and individually creative intellectual activity.
The district court found that writing down the idea of making a television series about four people who dine at each others' houses in turn and then select a winner cannot be considered as a work within the meaning of the Copyright Act. Neither can the way in which the elements are put together in the Come Dine with Me format:
- The competition to be the best cook or host.
- The presentation of the menu.
- The way in which the programmes are built, with sequences interrupted by interviews about the participants’ views and expectations.
- The use of voiceover.
The district court found that these elements still left considerable room for variations, and that the format did not deal with elements that often contribute to distinctive character, such as graphics, a signature tune and a title. Thus, the district court concluded that the Come Dine with Me format did not qualify as a work protected by copyright.
The district court found that there was neither danger of confusion nor an unreasonable exploitation of the commercial efforts of the plaintiffs. In the concrete evaluation of the danger of confusion, the district court referred to the differences in content and “packaging”, as previously emphasised in the assessment of the possible copyright infringement. The court held that the plaintiffs had to failed to prove that TVN had made use of anything more than the general interest in the market for programmes of this kind. In addition, the court held that the claim that TVN had used information from the production bible of Come Dine with Me was not proven. The court found that TVN had obtained the necessary know-how by attending the production of Fish On The Cake in Hungary, and had subsequently produced its own mini-bible, budgets and estimates. Finally, the district court referred to the Norwegian Supreme Court’s judgment in the 1994 Tomy Train case, in which it stated that the threshold for infringement of Section 30 of the Marketing Control Act must be higher when a product has been on the market for a while than when it is completely new. Come Dine with Me had been on the market since 2004.
The district court also held that the defendants had not acted in breach of good business practice, and stated that it was not in accordance with the intention of the legislators that Section 25 of the Marketing Control Act should cover competition situations such as that existing between TVN and TV3 in this case.
The district court found for the defendants TVN and Monster and awarded them legal costs. The decision implies that the plaintiffs could have picked a better case than that of the Come Dine with Me television format and its competitor 4-Star Dinner at 7:30 in order to obtain a judicial decision confirming that television formats are entitled to protection of some kind.
The district court appears to have erred on one point – namely, in stating that writing down the idea of making a television series about four people who dine at each others' houses in turn and then select a winner cannot be considered as a work within the meaning of the Copyright Act. This statement is too wide. Writing down an idea for a television series will, in most cases, result in a copyrighted work. The point that the court perhaps wanted to make is that such a work (the description of the format) will not afford copyright protection to the format. Thus, the court’s mistake does not make the outcome wrong.
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