Fresh Start: Copyright Protection for TV Formats?

Innovative formats, ideas and concepts often possess significant value. For example, successful TV shows such as the British format Who wants to Be a Millionaire (Wer wird Millionär), Big Brother, Pop Idol (American Idol, Deutschland sucht den Superstar), America's Next Topmodel (Germanys Next Topmodel) have been exported to numerous countries. In stark contrast to the great economic importance of such formats and show concepts, the possibility in Germany until now of claiming legal copyright protection for them has been very severely limited. However, two more recent decisions by the Federal Court of Justice (BGH) and the Higher Regional Court of Cologne (OLG Köln) have nevertheless indicated new possibilities for approach.

An important copyright principle provides that pure ideas should remain freely available to the general public and therefore cannot fundamentally claim copyright protection. Protection for formats, ideas and concepts has therefore been largely rejected by copyright case law. The format developer was dependent upon claims under trademark law and under the UWG, the scope of protection of which can only very limitedly cover formats and can often be circumvented by minor modifications.

From the previous case law

In the decision regarding the broadcast format "Dalli Dalli", the Federal Court of Justice (BGH) decided (Judgment of 14.11.1980, Az.: I ZR 73/78 – Quizmaster), that in the case of a combination of musical and vocal performances, stage scenes, reportage, interviews, announcements and game show presenter activities, there regularly was a lack of a formative unity. Only the individual performances of an entertainment broadcast could in concrete cases have the character of a work; however, not the entertainment format as such.

Similarly, the Federal Court of Justice (BGH) expressed itself (Judgment of 26.06.2003, Az.: I ZR 176/01 – Sendeformat) with regard to the family broadcast "Kinderquatsch mit Michael": In contrast to television series, which are characterised by fictional content and which typically tell a continuously developing plot in individual episodes, a television entertainment format is not connected by content elements, but merely by the identical format. A work within the meaning of the Copyright Act could only be the result of creative shaping of a particular subject matter. This was lacking in the case of a mere guide to format design detached from content and relating to similar other subject matter.

The Regional Court of Munich (LG) (Judgment of 14.01.2010, Az.: Az. 7 O 13628/09) rejected copyright protection for a football casting show format with a comparable rationale. Although the plaintiff had laid down his idea for a football casting broadcast in a worked-out concept and thereby provided a framework for the design of a footballer casting, this was nevertheless only a design guide, but not the concrete implementation in the form of a football casting broadcast.

The more recent case law

In the case of the learning games "pocketLÜK", "bambinoLÜK" and "miniLÜK", the Federal Court of Justice (BGH) (Judgment of the Federal Court of Justice (BGH) of 01.06.2011, Az.: I ZR 140/09 – Lernspiele) and subsequently the Higher Regional Court of Cologne (OLG Köln) (Judgment of the Higher Regional Court of Cologne (OLG Köln) of 13.07.2012, Az.: 6 U 225/08) has, however, surprisingly shown a more differentiated view and has addressed the question of when an abstract idea or a concept experiences concrete embodiment, and thereby becomes accessible to copyright protection, in greater detail.

The plaintiff developed and marketed learning games under the didactic approach "Learn-Practise-Check". The learning games each consisted of task or exercise booklets and a control device. The defendant manufactured and marketed similar learning games under the brands "Taschen Logolino", "Logolino Junior" and "Logolino", which functioned largely according to the same principle as the learning games of the plaintiff. In this regard, protection as a representation of a scientific nature was considered.

The Federal Court of Justice (BGH) came to the view that neither the exercise booklet nor the control device, considered in isolation, was capable of copyright protection. The contents of the game were also not capable of protection, since not the intellectual content of a work, but only the concrete form could be the subject of copyright protection. What was decisive was not what, but how it was presented.

By contrast, claims for infringement of copyright in the learning games consisting of control devices and exercise booklets could not be generally denied.

There were no legal objections to regarding the control devices and the associated exercise booklets, which can and should only be used together meaningfully and purposefully as a learning game, as a unit also for copyright assessment. The exercise booklet and control device were intended and suitable for being used together to demonstrate to the user, with the aid of graphic patterns or comparison of the colour fields, whether he had answered the posed question correctly. Accordingly, the "LÜK" learning games served to impart scientific knowledge with the aid of graphic representations.

Although, in representations of a scientific nature, the creative achievement cannot be derived from the game idea or conception as such or from the abstract method for implementing an idea, in the interests of the general public, ideas and concepts or respectively presentation methods must remain free to use.

This applies, however, only insofar as ideas and conception remained in the abstract realm, detached from the concrete work design. If they had experienced concrete embodiment in a particular work, the work design in its individual formal design was capable of copyright protection.

This applied in particular to the selection, form, design, arrangement and presentation of the information provided. Accordingly, game ideas and systems could not, as such, be capable of protection, but could be capable of protection in their concrete embodiment. In this regard, the game idea underlying a game, in its concrete design, participated in work protection, provided that a game could be individually designed in its phases in terms of content.

Conclusion

Formats, ideas and concepts can exceptionallycopyright protection enjoy, when the underlying (game) idea has found expression in a concrete form design, but this form design is not directly prescribed by the format; rather, there remain scope for design which the developer has utilised as an expression of his individual intellectual creation.

Although the right to representations of a scientific nature underlying the decisions possesses a peculiar scope of protection, it is not excluded that the decision is also transferable to TV shows and formats, with the consequence that whenever a concrete design of the scenery, the props and the game elements reveals, in the overall view, an expression of the show idea that is not necessarily prescribed by this idea, but in which scope for formal design has been utilised artistically, the format could be capable of protection.