In the first issue of print magazine TVBIZZ Russia, launched during MIPTV, we featured a story titled Your Format Sounds Familiar in which we discussed the case Toch-v-Toch (Exactly the Same) aired on Channel One vs. Your Face Sounds Familiar on Rossiya 1. Shortly after that Endemol announced officially that it is going to sue Perviy for copying their original format.

In association with Reed MIDEM, we continue the topic with an interview with Patty Geneste, Chairman of FRAPA, the international format industry association. In a conversation with Georgi Chakarov, Geneste discussed the various aspects and key elements of protecting an original format and also touched upon the problematics of starting a lawsuit and commented on the Endemol Spain vs. Channel One case.

Miss Geneste, Endemol has just filed a lawsuit against Channel One Russia claiming that they have copied Your Face Sounds Familiar with the show called Toch-v-Toch, or Exactly the Same. How hard will it be for Endemol to prove their case in court?

PG: I think when Channel One bought the rights and started airing the original, and then when they lost it and decided to make a rip off. Normally, that would make a much stronger case because they recognized the original first. That is also a funny title for a rip-off! This is a code of conduct situation, because they have changed a few elements, and if the judge is going to analyze it element by element, you might have only one element in common – the dressing up. If you have a judge who feels he wants to analyze it like this, and not use the expert witness - you have a problem.

But if you look at the business as such, if you look at the facts, I think Endemol must have a strong case. Because it will not be only a content fight, it will also be a business code of conduct fight. But it will also depend where the court case will be filed. I would say 50-50.

What will happen if Endemol win the case?

PG: If Endemol win they need to estimate the damage. For instance if the channel that is broadcasting the original format decides to stop because of the other program, that is a really big damage. And that would be higher than 400.000 euros per episode but if they continue then the damage is based on the estimation of losing business.

How does a case normally develop in court?

PG: I’ve only been once in court as an expert witness. Most of the time they use jurisprudence from other cases, not necessarily format cases, they use creative cases. They connect the current situation in court to those cases, and its up to the cleverness of the lawyer how he turns that into the favor of his clients. Its amazing how they do this nowadays.

In such cases sometimes celebrities are brought in, for example the host of the infringed show and the producer uses them to produce the court case. And the judge actually buys it for some reason. Sometimes producers pull the tricks to the limits.

I don’t like court cases at all because it also depends on what are you claiming in court. Are you claiming the idea, or like recently in the case of Red Arrow against the SBS Group and Talpa over the format Married at First Sight in the Netherlands they claimed that they infringed the code of conduct in the business. And they are continuing the court case. It is too late for mediation. And this judge he felt as if he was put into a situation where he couldn’t make any decision. Instead of looking at the code of conduct, which was too difficult for him, he looked at the formats, but that was not relevant anymore. Court cases are never good for formats.

How can independent producers protect their intellectual property?

PG: First, they need to describe their format as good as possible, make sure that in in the concept there is a unique twist, put different elements in a unique order and for gameshows it’s very necessary to describe the rules. If you have created a gameshow, then create a final game for the gameshow. If you don’t create a final game you can hardly protect it. It’s very important to register the complete development process.

What is also very important is to create a strong title with a logo. The title becomes the brand. If you create a brand people always want to identify with the brand. So with a strong title which becomes a strong brand, it’s less difficult to protect your format.

It is also very important to know who are the reliable established companies, so you need to do some investigation. Make sure that you work with established companies in the format business cause that is also part of your protection.

And it’s highly necessary to save the communication regarding the format so if there is a problem at some point you still have the email correspondence and even notebooks are important.

Is it harder to protect scripted compared to non-scripted shows? What are the main differences?

PG: Gameshows were one of the first to be recognized as formats. Wheel of Fortune and Jeopardy! were the first formats from the 50s. Those were bartered by P&G and recognized as a unique game because the structure was so clear, nobody questioned the fact that there are rights connected to that.

Also, Who Wants to be a Millionaire created the blue light, and since then a lot of gameshows are recorded in the blue light. And Deal or no Deal, probably, was the first gameshow without questions and answers. Those structures and those little but yet important things created a new generation in gameshows but still as long as you do those elements in a completely different order and different environment, it is not such a big deal to use them.

You create a new format with sometimes existing elements which are used in other shows. However, as long as you put them in a unique order together with other newly created elements it doesn’t necessary have to be a problem. But if you create a talent show with blind auditions and turning chairs – all of a sudden everybody recognizes that as a format. But blind auditions are not new either, you can use it in other kinds of formats. Turning chairs, however, are discussable, I think it is protectable and unique in the format as such. If others use that, you have a strong case already to protect that element from being used in another show.

The most difficult area, which is a fast growing area is the factual entertainment format area. There it is very very relevant if you want to protect your idea to have something unique attached to your idea. And the knowledge how to produce it with a combination with strong title and of course the same structure and same story building is what it protects as a format.

If you look at the scripted formats: of course it starts with the synopsis and the settings that the writers have written and the characters description. But the script obviously in combination with the arena and synopsis is what makes it unique. Again, the unique elements of the characters in combination with the story line is what the format is on the fiction side.

If an IP owner finds out that someone has stolen the idea for their format what steps must be taken? What arguments are needed in order to prove an IP infringement in court?

PG: First of all Frapa is not favor of going to court for a very simple reason: the law in most countries still doesn’t recognize the IP protection in formats. Then you depend even more on the judgement of the judge who has no idea what this business is about, and this depends on his mood.

What we do, when members approach us when in their eyes there is an infringement. We first ask them to send us the materials. We offer our members to analyze the case ourselves within the board. We offer them two members, each one makes their own analysis, we make a document of that and we send it to the format owner. This could be an advice to mediate, this could also be when we say, this is a tricky business, in the sense that there are couple of weaknesses there that we like to point out.

We don’t say go to your lawyers because lawyers are very expensive. Because of weaknesses in the law, we advice our members to go for mediation. I have personally done successfully 5 mediations in the last 2 years and all of them were settled in a way that was satisfactory to both parties involved. Those are long extensive processes.

We have a cooperation with WIPO – Worldwide Intellectual Property Organization. If our member says we want mediation – they will approach the other party for very very low fee. First hour is for free, and then it goes up to the maximum fee of about 5.000 euro. Whereas if you would hire a lawyer and go to court, you have to add a zero to that. With mediation you can keep the friendly relation with the infringing party, cause most of the time you agree to not publicize the information and the outcome.

Sometimes the big companies are too fast with going to court because it comes from an emotional response. We work in the media, and media is very passionate business with passionate people. And once they are offended about something or upset, they go for it. And usually these companies reserve some budget for any kind of problems, so they can afford it. However, we also know that some of those big parties regret that they jumped in the court so fast.