It’s a food fight! Nine roasts Seven in copyright battle

There is nothing new about television executives complaining that rival network has ripped-off one of their shows. But getting a court to agree is another story altogether, as Channel 7 recently found out!

In a high ‘steaks’ legal stoush, Channel Seven tried to have Channel Nine’s new cooking show The Hotplate taken off the air on the basis that the show infringed Seven’s copyright in My Kitchen Rules. But the Court judged Seven’s arguments to be underdone, again highlighting the difficulties that networks and producers face when trying to protect the ‘format’ of a television show.

With Season 1 of The Hotplate now wrapped up, we look back at the court’s reasoning in the dispute between Seven and Nine.

Copyright in television formats

So what are formats and why are they so hard to protect?

A format is essentially the underlying idea and branding that makes up a television show. For networks, formats are also big business. Securing the rights to an exciting format can be the key to ratings success and the advertising dollars and licensing revenue that follows. So it is little wonder that TV execs opt for lawyers at 20 paces when someone starts muscling in on their ratings turf!

But formats can be notoriously difficult to protect through copyright arguments, and the reason boils down to one of the fundamental principles of copyright law, namely that copyright protects only the expression of “ideas” in a material form, rather than the ideas themselves. In the absence of a specific “format” right at law (which does not exist!), the mere fact that two programs have the same premise or features is unlikely to be sufficient to demonstrate copyright infringement.

The Hotplate v MKR cook-off (Seven Network (Operations) Limited v Endemol Australia Pty Limited [2015] FCA 800), is not the first time the question of copyright in TV formats has been considered by the courts. In fact, in 2005 Nine was accused of ripping off another program. In Nine Film & Television Pty Ltd v Ninox Television Ltd [2005] FCA 1404, the makers of television show Dream Home alleged that Nine had infringed its copyright by creating The Block. The court held that the broad similarities were not sufficient to constitute copyright infringement, and since then The Block has gone on to become a ratings winner for Nine. However, it was a different story in Zeccola v Universal City Studios Inc (1982) 46 ALR 189, where the court held that the makers of a killer shark movie, The Great White, infringed the copyright of Jaws, in the film, screenplay and book. The judge held that the film substantially reproduced several situations and characters from Jaws.

Out of the frying pan, and into the courtroom

Of course, as Hotplate and MKR are both so-called ‘reality’ TV shows, Seven was not able to point to a script or screenplay that was clearly copied. Instead, Seven claimed that it owned the copyright in:

• various literary works associated with My Kitchen Rules, including the format pitch, format presentation and production bible; and
• various dramatic works consisting of the combination and series of incidents, plot, images and sound reduced to a material form in certain episodes and series of My Kitchen Rules.

At this interlocutory stage, Seven wanted the court to grant an injunction preventing Nine from broadcasting The Hotplate until the matter had been decided.

When deciding whether or not to grant the injunction, the court must undertake two enquiries. Firstly, it needs to consider the strength of the applicant’s claim (i.e. is there a sufficient likelihood of success at the hearing). Secondly, it must consider the ‘balance of convenience’, which involves an assessment of the risk of doing an injustice by either granting or withholding the relief sought.

Seven argued that The Hotplate was a clear rip-off, pointing to similarities like the fact that both were cooking competitions amongst pairs of contestants, there are two ‘expert judges’, the teams take turns to cook in ‘Instant Restaurants’ in their homes, etc.

Nine, of course, highlighted the differences between the shows, including the fact that The Hotplate was based on professional restauranteurs, whereas MKR involved amateur cooks. Nine also argued that many of the key elements of MKR’s format were themselves unoriginal and had been used in other food reality programs such as Masterchef and non-food reality programs such as The Block.

Nicolas J noted that to reproduce in a material form elements of a dramatic work which themselves are unoriginal will not normally constitute an infringement of copyright because what has been taken will not be a ‘substantial part’ of the copyright work. However, he also said that, as with a compilation, a dramatic work which consists of a combination of stock elements “brought together by the exercise of skill, judgment or labour may constitute an original dramatic work even through some, or perhaps even most, of the elements would themselves individually be unprotectable due to lack or originality”. Where some elements are taken, or they are combined with different elements, the question of whether the original dramatic work was infringed becomes very difficult to answer.

Ultimately, Nicholas J found that, despite the differences between the programs, the format seemed to be “very similar”. The court was satisfied that Seven had a reasonably arguable case that the formats were similar and that the close similarity was the result of copying. However, whether a ‘substantial part’ was reproduced in the relevant episode of The Hotplate will depend on the quality of the elements allegedly taken. While the case was reasonably arguable, Nicholas J did not accept that Seven had a ‘strong prima facie case’.

On the question of the balance of convenience, the Court considered Seven’s arguments that allowing the program to continue on air would interfere with its commercial relationships and diminish the strength and value of these arrangements and the MKR brand. However, the Court found this was unlikely, noting that Seven would have the opportunity to vindicate its rights fully at an early final hearing. Seven also suggested that Nine could recommence broadcasting at a later date if a permanent injunction was not granted, but the Court found that this would likely not be as simple as suggested.

Nine, on the other hand, argued that Hotplate was a key piece of programming to be broadcast in prime time with a view to obtaining good ratings for the show itself and other programs. The court found that the balance of convenience fell in Nine’s favour, and refused to grant the injunction.

Lessons for producers and networks

Protecting copyright in formats can be difficult, especially for unscripted and ‘reality’ style shows.

Practical tips include making sure you have proper confidentiality agreements in place before pitching new formats or shows, ensuring that pitch and concept materials are as detailed as possible (and therefore attract copyright protection!) and registering slogans and brand names as trade marks.