Introduction
The rapid growth of reality television in India has transformed the way that contemporary media is produced, how audiences engage with media, and how commercial broadcasting is executed. Competitive, personal, talent-discovery, and social-interaction programming now dominate the prime-time broadcast schedules and digital streaming catalogues. These types of programs create significant economic value for broadcasters and producers, not only because of their episodic nature but also because the conceptual structures (also called television formats) associated with their production can be replicated across seasons, networks, and international markets.
While television formats have significant economic value, they have ambiguous standing in Indian copyright law. The Indian Copyright Act of 1957 provides copyright protection for original works of authorship that are fixed in a tangible medium; however, the law does not recognise program formats as an entirely separate protected subject matter.[1]. This raises an important legal issue: Can the format of an unscripted program be protected independently from the final audiovisual work?
The traditional distinction between idea and expression is blurred by reality television, creating a fundamental uncertainty. Reality television operates largely as an unscripted genre, relying on both spontaneous and evolving narrative elements in distinct ways from scripted dramas; the creativity of the format designer is expressed through the structural rules, aesthetic presentation, and interactive aspects of the format rather than through a predetermined dialogue or storyline.
The purpose of this Article is to evaluate the extent of copyright protection available under Indian law for reality show formats. In the course of this evaluation, the Article will examine both the doctrinal limitations imposed by the idea-expression dichotomy,[2] as well as the relevance of the basic differences between scripted and unscripted content to the copyrightability of format bibles and production documentation. Additionally, by evaluating Indian court decisions and relevant foreign case law, the Article will also attempt to ascertain how courts may adjudicate allegations of format copying under existing law.
Television Formats as Creative and Commercial Assets
Television formats can be seen as organised creative structures that are meant to enable the production of audiovisual content through various episodes, seasons, and in different locations. Formats are created to be replicated, while television programs are completed works of audiovisual media. A format is both a system of how the content is created, performed and presented, and a set of clear parameters such as: types and roles of participants; the flow of the narrative; methods of elimination or evaluation; the manner in which the performance is staged; how participants engage with the audience; the identity of the brand; and the visual appearance of the finished product. All of these elements form a “blueprint” by which the same programme can be produced repeatedly while still allowing for contextual adaptations.
The importance of formats is that they are both creative concepts and commercial commodities. From an industrial perspective, formats have evolved into some of the most valuable assets in the world media marketplace. Television producers and broadcasters are increasingly relying on the licensing of formats instead of just purchasing finished work. The owner of a format will grant a local producer a licence to recreate the programme’s core conceptual elements and systems. This process allows the local producer to change the content of the show in relation to culture, language, celebrity input and audience expectations and still maintain the essential identity of the programme. Therefore, television formats promote the global exchange of television programme concepts and also encourage the development of local television industries.
The success globally of competitive quiz shows, competitive cooking shows, and social-experiment reality shows shows how audience engagement is often based on both the programming techniques that they have become familiar with and the novelty of the storylines. Familiar ways, such as the rhythm of the audition rounds, how the elimination ceremonies are run, and how climaxes of shows are structured, will remind viewers that they are a part of each show, which in turn builds audience loyalty across seasons and geography. As a result of this familiarity, this has created a specialised design field within programming that looks at how to create formats, visual branding, and audience psychology through the use of narrative engineering.
The commercial value of formats has, at the same time, made the business community more concerned about the imitation and copying of creativity. Formats primarily consist of concepts and procedures rather than a defined work; therefore, they are very susceptible to being copied. Other broadcasters in a competitive landscape may create series that have fundamentally the same competitive structure, competition dynamics among contestants, or visual style with very minor variances. This presents challenges for those trying to think through how one judges when a creator may have been inspired to adopt the creator’s work; yet it also presents challenges regarding when a series looks to be unlawfully copying another creator’s work.
Format Bibles and Production Documentation
TV producers use format bibles to protect their programmes. Format bibles provide a complete description of a programme’s structure, narrative approach, visual style, casting criteria, episode order of a programme, and branding, among other things. A format bible fulfils the fixity requirement for copyright protection by converting abstract ideas into documents with a particular form and written expression.
Creating a format bible is also a creative process for the producer. A producer must find a method to structure competitive phases of a show, integrate participant stories into episodic storytelling, and keep the audience interested throughout several episodes. All these decisions involve the use of creative combinations of structural and aesthetic components to demonstrate and apply skill and judgement. Any combination of these creative structures and aesthetics that are original can be classified as literary works, and format bibles can be classified as literary works for purposes of copyright law under the Copyright Act of Canada.
Format Bibles are very important in terms of evidence for infringement disputes. Courts often compare competing production documents to see if any similarities were created through either copying and/or shared genre conventions or styles of writing. The more detailed documentation you have on your project can create a stronger case for authorship, prior creation, and substantial similarity. In business sectors that have high-speed concept development and a trend towards informal pitching formats, written records can make a significant difference.
The fact that some courts have recognised Format Bibles does not necessarily mean all the contents within the Format Bibles are copyrightable. Courts continue to filter out functional elements, generic competition rules and “standard” production techniques before determining if any part has been infringed. An example of this would be the way that audition rounds and elimination ceremonies may be treated by a court as unprotected “Scènes à Faire” in a Format Bible. However, if a Format Bible has unique narrative framing devices, visual symbolic devices or non-conventional participant interaction methods documented that are unique to the product described in the Format Bible, those elements may be protected.
The strategic use of Format Bibles is indicative of the larger practices employed across the industry. Many production companies use a combination of copyright claims and contractual assurances, such as non-disclosure agreements and licenses, by using this multi-layered approach. This approach recognises that although copyright law does provide some protection, it is the ability to negotiate commercially that will define how a Format is ultimately exploited or enforced in the marketplace.
Statutory Framework under the Copyright Act 1957
The Copyright (Amendment) Act, 1957, governs copyright protection for works created in relation to section 13 of the Copyright Act, 1957[3]. Section 13 permits literary, dramatic, musical and artistic works, cinematograph films, and sound recordings to be protected by copyright. There is, however, no reference made in the Copyright Act, 1957, for television formats, resulting in an indeterminate status for television formats under the Copyright Law. This lack of definition will create particular challenges, considering the importance of format licensing in today’s television industry.
In terms of actual reality shows, many of the individual components of a reality show can and will generally qualify for copyright protection as original literary works through written scripts, concept notes, production outlines and detailed guidelines that embody sufficient originality or creativity. The recorded episodes typically qualify for copyright protection as cinematographic films and are treated as stand-alone audiovisual works under current copyright law. Musical themes, visual/design elements and other types of artwork produced as promo materials will, similarly, be treated as independently copyrighted works under their respective category of copyright. The overall conceptual framework of production for all television programs (e.g. how to design a challenge, how to vote or how to interact with others in a competition) does not currently fall within a precise statutory definition.
The requirement of originality adds a further layer to the challenges of protecting television formats via copyright. In Eastern Book Company v DB Modak[4]The Supreme Court of India clarified that originality under Indian copyright law arises from the exercise of skill and judgement rather than through industrious collection or mechanical means. This means that to satisfy the requirement of originality in regard to format documentation, the decision-making process for selecting structure/sequencing/presentation should demonstrate creativity. Generic descriptions of rules of competition or widely used methods of production are not likely to meet this requirement for originality.
Another doctrinal difficulty is presented by the requirement for fixation. Copyright can arise only in expressions that have been fixed in a material form, such as through written materials or audiovisual recordings. The format of reality shows usually originates from informal discussions, brainstorming sessions, or oral presentations before being formally documented. Without a physical or permanent record of this creation process, the ability to prove authorship and date of creation becomes problematic in a copyright infringement action.
The Idea-Expression Dichotomy and Its Implications
The idea and expression dichotomy represents a significant aspect of copyright law and has a major impact on the protection of television formats. Under this doctrine, copyright does not protect the idea, but rather protects only the way in which the idea is expressed. It also provides for a public domain of creative ideas and therefore encourages artistic expression, competition and innovative development.
India’s Supreme Court ruling in R.G. Anand v Delux Films[5] This is the dominant case regarding this principle. The Court stated that similarities due to common themes or conceptual foundations would not constitute copying, unless there was a significant amount of copying of the expressive elements. This rule is particularly relevant to reality television as the programme forms are usually the result of common genre conventions and, therefore, significantly similar.
Because of the nature of reality television, unscripted formats have characteristics that are considered scènes à faire. These are characteristics that arise naturally from the subject matter being covered and/or are integral to the genre. Examples of scènes à faire in reality television include audition rounds in talent competitions, elimination rounds in survival programmes and the use of audience voting in interactive programmes. Courts would generally not grant copyright protection to these types of characteristics; if they were given such protection, then that would preclude other producers from producing similar programmes in the same genre.
Restrictions on copyright protections are imposed by the principle of merging. When a limited number of ways are available to present an idea, copyright protects it from monopolising both. For example, as there are few alternatives available for determining winners by the progressive elimination method, program formats using this method will tend to have comparable structural characteristics. Thus, if copyright protection were provided for the program, the copyright owner would effectively monopolise the idea itself, which contradicts the goal of copyright law.
Scripted and Unscripted Programming: Copyright Implications
Copyright protection for television content is determined by the distinction between scripted and unscripted programming types. Scripted programming, which includes fictional dramas, sitcoms, or historical program types, is created according to a screenplay that describes in detail things like dialogue, character arcs, narrative progression, and scene layout. Each of these elements constitutes a specific form of literary and/or dramatic expression with respect to copyright law. Therefore, it is likely that copying large parts of a screenplay or reproducing distinctive characterisation and/or plot structure would be an infringement of copyright.
Only unscripted programming presents a more complicated legal status on copyright. Reality program formats are based on a structured format that combines predetermined elements of the format (i.e., the structured nature of the format) and participants’ spontaneous behaviour and/or unscripted interaction. While producers may have an outline for the episode, a script for the host, and some thematic elements that are predetermined at the time of filming, the majority of the narrative content of an unscripted program comes to be as a result of the organic growth of the narrative during the course of filming. The hybrid nature of such programs makes it difficult to identify protectable expression because the format designer’s contribution to the creation of the show is part of the structured rules of the program rather than through any predetermined storytelling.
In terms of copyright law, this distinction illustrates the difficulty in applying traditional copyright categories to modern media practices. Courts must evaluate whether there is enough underlying originality in the structural design of an unscripted programme (i.e. competition stages, participant dynamics, and elimination procedures) to qualify as expression. In other words, there is a challenge of determining who can legitimately claim to be a creative author and, at the same time, ensuring that generic programme mechanics do not receive copyright protection.
From an Indian judicial standpoint, the evolving and hesitant approach has been reflected clearly by the decisions of Indian courts with respect to protecting unscripted formats. For example, in the case of Anil Gupta v Kunal Dasgupta, the Delhi High Court found that a reality show proposal involving matrimonial matchmaking fell within the scope of potential copyright protection, where there had been sufficient development of the concept, and it was revealed in confidence.[6]. The Delhi High Court seems to have concluded that the plaintiff’s idea was expressed in a specific format with certain features, beyond a mere abstraction. Therefore, the Delhi High Court appears to suggest that when the structural elements of unscripted formats are articulated clearly and creatively elaborated through a specific format, such formats may enjoy limited protection.
Substantial Similarity and the Role of Genre Conventions
When there is a dispute over the claim that a format was copied, the courts typically use the doctrine of substantial similarity to address the question of whether enough of the claimant’s work has been used to be recognisable to an average viewer or a person with experience within the field. The determination of whether the works are “substantially similar” is a qualitative analysis, rather than a purely quantitative one, and is based on the cumulative effect of the works that are in dispute.
Substantial similarity is an even more complex area of law within the context of reality television because although these types of shows have many common structural characteristics, they also exist for similar entertainment goals, so that shows that are competitive in nature may have many similar characteristics (e.g., auditions, team formations, elimination rounds) and shows that are based on social experimentation may have similar characteristics (e.g., interpersonal conflict, audience voting, staged challenges). Therefore, there are functional constraints based on the format of the show and audience expectations, as opposed to the common intention to copy.
The sensitivity shown by the Indian Courts in relation to these issues is demonstrated in the decision of the Bombay High Court in Zee Entertainment v Sony Pictures, where the Court assessed claims of the replication of a particular singing competition format, with minor modifications.[7]. The Court found from the productions of both parties that any similarities between the productions related primarily to generic elements associated with talent shows, and concluded that copyright protections will not be afforded to aspects of the structure of talent shows that are used consistently across the genre.
International jurisprudence similarly recognises that assigning exclusive rights over generic conventions of a genre would discourage creative experimentation. On the other hand, Courts are also open to the idea that certain combinations of otherwise unprotected elements might result in a protectable expression. For example, a combination of thematic story arc, symbolic stage arrangement, and novel audience participation techniques could produce an overall impression that is uniquely identifiable.
The test for substantial similarity, therefore, functions as a filter, permitting public domain use of unprotected elements while protecting true creative contributions. The determination of substantial similarity is a function of careful examination by the Courts of both individual elements and the cumulative arrangement of the elements. As the evolution of the reality television genre continues, an important component to support a balance of intellectual property will be the ability to set nuanced criteria for determining whether similarity exists.
Comparative Perspectives on Protection of Television Formats
The analysis of multiple legal systems worldwide shows that the problem of lack of certainty as to the copyrightability of formats is widespread and not unique to the legal system in India. Courts in many different jurisdictions have struggled with how to balance the economic value of a format with the limitations imposed by the copyright law. While there may be differences in how the legal tests are applied to determine whether a format will be protected as a standalone work, there appears to be a common approach across jurisdictions: certain formats will not be protected as standalone works under copyright law unless the conceptual framework of the format has been expressed with sufficient detail and originality.
The United States has a strong commitment to the “idea-expression dichotomy,” which is, in effect, no copyright protection for the idea. United States copyright courts also apply the legal test of “scènes à faire”, which is generally defined as material that is an inherent characteristic of a type of work. Therefore, United States courts generally do not grant copyright protection to creators of television game shows (and reality television competition shows) solely because of similar types of program structure or competition mechanics. For instance, several courts have held that elements of quiz shows and reality television shows, such as elimination of contestants, scoring systems, and audience participation, are functional elements of a type of television show that all quiz shows and reality television shows share; therefore, there is no copyrightable element to those elements. This is consistent with a public policy of maximising the availability of ideas to promote new and innovative programming.
The English courts have been equally cautious. A good example of this is Green v Broadcasting Corporation of New Zealand, where the Privy Council did not accept that a television program concept was a dramatic work because there was such a lack of certainty and precision when the idea was created.[8]. There was no basis for the copyright protection of that idea. This lack of clarity highlights how difficult it is to classify formats inside traditional copyright subject matter. Consequently, in the UK, most format creators will be relying on contracts, confidential information and the tort of passing off for protection, instead of relying on copyright to protect formats. The use of these alternative forms of legal protection exposes the limitations of copyright law’s inability to effectively address issues in relation to format disputes.
Industry Practices and the Role of Contractual Protection
The television industry has implemented a variety of mechanisms to protect format rights due to uncertainty in the legal framework. A significant method of regulating how programme ideas are provided, developed or exploited is through the use of contracts. Producers often enter into non-disclosure agreements with the television broadcasters or investors when presenting ideas, which creates legally enforceable confidentiality obligations. This creates the possibility of obtaining remedies for the breach of such obligations even if no copyright protection exists.
Another important method of format exploitation is through the use of licensing agreements. Typically, the owner of the format licenses the broadcaster with the right to reproduce the programme’s format for a specified territorial and/or temporal duration. Licensing agreements generally include detailed provisions that govern adaptation of the creative work, branding consistency and quality control. By formalising leasing agreements between format creators and local producers, licensing agreements reduce the risk of unauthorised reproduction of formats and make it easier to distribute successful programme models globally.
Doctrinal Gaps and the Need for Interpretive Clarity
Though legal systems evolve, the protection of TV show formats remains uncertain, particularly with respect to how original a format must be to obtain protection. There are no recognised standards or tests for identifying an original format, i.e., distinguishing between a generic or form of programs versus a creative or protectable form, so courts have little guidance in making these distinctions. As a result of the inconsistencies noted above, the outcome of format law can be uncertain, thus affecting the way the media industry invests in formats and therefore potentially limiting the production of format innovations.
The issue of whether or not the substantial similarity test applies to format disputes is also lacking in clarity. Courts will have to find ways of determining whether two unscripted shows are substantially similar, given the lack of traditional story elements in unscripted formats; thus, they need to establish a framework for analysing format similarity (possibly using expert witness testimony or standards in the industry) to assist them in determining whether the format was created by the original creator.
There is ongoing discussion about whether or not legislative change would help the legal treatment of format development. Some critics have suggested that a unique form of protection equivalent to database rights under European law should be adopted for the protection of television formats. Critics of that approach have raised concerns that it could result in over-protection of formats and therefore inhibit creative freedom. One alternative may be to clarify the existing format law concept through judicial interpretation rather than increasing statutory monopolies on TV show formats.
Conclusion
Formats for reality TV shows lie at a crossroads of three areas: creativity, commerce, and copyright law. Their economic worth comes from their ability to create content that is capable of being produced numerous times, as well as appealing to viewers across countries or cultures. However, this ability to create repeated content complicates the traditional laws meant to protect static works of authorship, which are separate from ongoing ideation systems.
Currently, the Indian Copyright Law does not provide television formats with specific protection as a distinct category of work. However, authors may still be able to obtain protections for their works through literary works, cinematographic movies, and other IP rights. The idea-expression distinction continues to be the main impediment to protection for formats, because copyright law continues to function to ensure that idea-based programming will be available for all creators to use.
The decisions made by courts in India reflect a very nuanced view of how to build an equilibrium between the two policy bases. First, courts have recognised the need to protect the true creative investment made by format creators. Second, and no less important, Courts have recognised the need to protect competition within the industry. Case law from around the world confirms this reasoning; excessive protection for the structures of formats could slow innovation and decrease the number of programming options available to audiences.
The evolution of reality television going forward, especially with respect to digital streaming platforms and interactive/engaging forms of media, will present even greater challenges regarding copyright law interpretation. Rather than enacting widespread legislative reform, it is preferable to take a more practical approach by creating well-defined interpretive standards that both acknowledge the unique characteristics of unscripted content and uphold the fundamental principles of copyright laws.
Bibliography
- Anil Gupta v Kunal Dasgupta 2002 (25) PTC 1 (Del).
- Eastern Book Company v DB Modak (2008) 1 SCC 1 (SC).
- Green v Broadcasting Corporation of New Zealand [1989] RPC 700 (PC).
- R.G. Anand v Delux Films (1978) 4 SCC 118 (SC).
- Zee Entertainment Enterprises Ltd v Sony Pictures Networks India Pvt Ltd, Notice of Motion No 1126 of 2017 (Bombay High Court).
[1] Copyright Act 1957.
[2] R.G. Anand v Delux Films (1978) 4 SCC 118.
[3] Copyright Act 1957, s 13.
[4] Eastern Book Company v DB Modak (2008) 1 SCC 1.
[5] R.G. Anand (n 2).
[6] Anil Gupta v Kunal Dasgupta 2002 (25) PTC 1 (Del).
[7] Zee Entertainment Enterprises Ltd v Sony Pictures Networks India Pvt Ltd Notice of Motion No 1126 of 2017 (Bom HC).
[8] Green v Broadcasting Corporation of New Zealand [1989] RPC 700 (PC).
Authored by: Ms. Monishita Dey, Institute of Law, Nirma University
Ms. Monishita Dey is a fourth-year B.A. LL.B. (Hons.) student at the Institute of Law, Nirma University, Ahmedabad. She has a keen interest in Intellectual Property Law, Media and Entertainment Law, and Fashion Law. She actively engages in academic writing and has contributed articles on contemporary legal issues relating to intellectual property rights (IPR).
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