Updates on protection of television formats and advertising campaigns

Article 5 to the Copyright Act sets forth in Israeli law the basic rule whereby copyright protection does not extend to the ideas underlying an original work, and is confined to the “expression” of an “idea”. It has been acknowledged that the line between protected expressions and idea per se is vague, and the distinction between the two, although necessary, frequently seems arbitrary. In the past year a number of rulings have been handed down addressing the question to what extent an “idea” can be protected in the Media under copyright law.

In this article we will review the ruling recently handed down in respect of the status of ideas for television formats and advertising campaigns and we will examine under which circumstances they fall within the purview of copyright protection.

In the recent case of Brodesky v. Armosa International Media Judge Dr. Avnieli of the Tel Aviv District Court held that copyright in television formats exists, provided that the format is an idea that has been reduced to material form.

In the case the claimant, Brodesky, argued that its moral right had been infringed upon in a television format that it sold to a production company, which distributed it to foreign broadcasting networks around the world and made use of it without indicating that the claimant is the creator of the format but rather presenting others as the format’s creator. This case dealt with a television game show Upgrade, a game show that the claimant argued was predicated on an idea it came up with, whereby a host arrives at the home of the game show’s participants, asks the home’s residents trivia questions in a variety of fields and if they answer the questions correctly, they win an upgrade to products in their home. In this lawsuit the question, among others, was whether copyrights subsisted in a television format at all.

The court ruled that the accepted approach in the world is that a television program’s format is basically an idea that is not protected in essentia by copyrights, stating, “since it can be expressed in different forms, especially where game shows, “reality” shows and quiz shows are concerned. Thus, for instance, an idea for a talent competition in the fields of art and entertainment can take on a different shape and be applied in various ways, including the show’s general premise, the host’s role, the repeated phrases on the show… and so on.”

The court held alongside this that an “amorphous idea” or “preliminary sketches”, which constitute the beginning of the thought process for creating a television format, should be distinguished from a situation where the idea took shape and crystallized into an original “tangible” format, including scenes and elements unique in their integration or essence. Where a concrete expression of an idea is concerned, then said expression may be protected under the law and be considered a copyright protected “work”. In this case the court held that the game show’s format should be recognized as a format entitled to copyright protection.

In its ruling the court addressed rulings in foreign jurisdictions that have recognized copyright protection in television formats , such as the suit filed by the producers of the show Survivor, where it was argued that the format is protected under copyright protection in view of the integration of unique elements contained therein, which were infringed upon as part of the broadcast of the show Big Brother. The Supreme Court of the Netherlands ruled that the format of the broadcasted show is entitled to copyright protection, but rejected the suit since it found no substantive similarity between the formats of two reality shows.

Interestingly,  in another ruling handed down by judge Avnieli half a year earlier, in a case that dealt with a marketing campaign, she denied copyright protection to the idea underlying the campaign , holding that the idea has not ripen to a protectable expression (Zarmon DDB Ltd. v. Adler Chomsky Warshavsky). In said case, an advertising agency created preliminary sketches for an advertising campaign with respect to clothing products of the company Delta, starring the singer Ninet Tayeb. The agency claimed copyright infringement of its campaign, but the court held that although in principle an advertising campaign may be copyright protected, this case did not concern a work entitled to copyright protection since it was a “mere idea”. Yet, the court ruled in the same case that the claimants were entitled to monetary reward for use of their idea to recruit the presenter Ninet Tayeb for the advertising campaign, in accordance with the laws of unjust enrichment, despite it holding that recruiting a presenter does not constitute a work entitled to copyright protection.

District court justice Dr. Agmon Gonen arrived at a different conclusion in case of Journey Productions v. Israel Discount Bank, where the court rejected the claim to copyright protection in an advertising campaign, and also rejected the grounds for unjust enrichment. In said case the claimant argued that Discount Bank had made use of an idea that it presented to the bank for setting up a road safety membership for customers, where members would sign a charter of commitment to careful driving and would receive a magnetic card that could get them benefits which increase inasmuch as they do not accumulate traffic violations of their obligations. As part of this ruling the question was examined as to whether an idea for this advertising campaign could be protected. The court held that as a rule copyright law does not grant protection to ideas and that protection within a cause of unjust enrichment would be given only in exceptional cases where, apart from copying use of the idea, a negative, additional basis also exists with respect to the conduct of the idea, conduct that is wrongful or faulty – and this only to the extent that the subject of copying has innovation that justifies protection. The court ruled in this case that the idea itself was not proven to be innovative since large parts of it were found in the public domain, and rejected both the cause of ownership as well as the cause of copyright.

It follows from the aforesaid that in  order for a television format or advertising campaign to be entitled to protection under the Copyright Act, they must not only be “general and amorphous ideas” but must make manifest some kind of an expressive form that is cohesive, tangible and concrete