protection des formats audiovisuels
Sébastien Lachaussée & Elisa Martin-Winkel

Sébastien Lachaussée & Elisa Martin-Winkel

TV Format and difficulties to benefit from a legal protection

With the democratization of online or social media broadcasts and the rise of international broadcasting, the importance of audiovisual formats is growing. Broadcasts come in various forms and concepts, the protection of which raises questions for their authors and producers.

The question of the extent of the legal protection of audiovisual formats is essential since the takeover of formats by third parties is a condition and in particular the possibilities of action of producers and authors in the event of non-consensual exploitation of their formats.

Definition of  audio-visual format

Audiovisual formats are diverse and form the backdrop of game shows as well as set or reality TV shows, but also fiction series built according to an identical frame.

There is no legal, regulatory, or conventional definition of the audiovisual format but jurisprudential definitions have been made and are repeated in judgments in the same or similar ways since the 90s.

For example, regarding a dispute about the TV shows The Great British Weather Show and Météo à la Carte, the Paris Court of Appeal defines this format as  » a kind of instruction manual which describes a formal process, always the same, consisting of a succession of sequences whose division is pre-established, the creation consisting,  apart from the material form, in the sequence of situations and scenes, that is to say in the composition of the plan, including a starting point, an action and a denouement, the format constituting a framework within which the work will be able to develop« . (CA Paris Pôle 5 – chambre 2, 1er juin 2018, n° 17/00610).

As for fiction, the SACD sheds light with a definition of the literary bible as the original and founding reference document of a series that describes the elements necessary for the writing of episodes of a television work by detailing the permanent elements essential to the development of the series: general framework in which the characters will evolve, common dramatic elements,  locations, themes, dramatic progression, detailed description of the main characters and their relationships, indicating that this is distinct from the simple concept or idea.

In view of these definitions, the format must be sufficiently advanced and formalized to benefit from copyright protection and the latter is difficult to obtain.

Formats in French intellectual property law

In terms of copyright, the principle is simple: the status of work protected by copyright is granted to an audiovisual format only if it fulfills the criteria of originality and is not a simple idea of “libre parcours”. 

Proving originality can be difficult for audiovisual formats, which are relatively short and synthetic documents and formats are regularly denied protection, especially when the elements  are mere concepts or processes.

For example, theuse of interactivity in a game show is not  recognized as an original element « a natural or legal person may not appropriate in any way the simple use of new technical means, this use not being in itself, original ».(Cass 1ere Civ. 7 nov. 2006 SA Diffusion Corse du Livre c/ Perigot).

On the other hand, protection was granted to  the format of the Treasure Map on the grounds that it was based « on a precise and original rule, namely a competition between two candidates circulating by helicopter over a region of France, looking for pieces of map whose reconstruction allows to draw a compass rose at the geometric center of which is a treasure,  All using a laptop allowing the consultation of the riddle, documentation, playground, etc.  « , rules materialized in « manuscripts that shape the original idea of the game, detail of the essential characteristic elements of the final work and take the elements of the game to script them » (Tribunal administratif de Paris du 10 juillet 2003).

It should be noted here that recent decisions are generally very severe.

As early as 2009, the judges refused protection to formats that were not defined with sufficient details and completeness because the projects did not include an indication of « the setting of the program, the place and role of the interviewer, how to film the set and character » or that the format was not formalized by « credits, a setting, a detailed presentation of the characters, scenes, questions leading to the conclusion» (TGI Paris, 3e ch., 4e sect., 12 nov. 2009, N. D. c/ SA Métropole Télévision ;TGI Paris, 3e ch., 1re sect., 19 mai 2009, Sophie Davant et al. c/ SARL Les baladeurs d’images et al).

About fiction, the  Judicial Court of Nanterre also ruled that « The idea of a short format featuring a duo of hostesses in the reception hall of a company, hostesses exchanging humorous remarks on various themes is not in itself susceptible to appropriation under copyright, only the formalization of it that emerges from the various episodes provided is susceptible to protection under copyright » (TGI Nanterre, 16 juin 2016).

Moreover, even when protection is recognized, its implementation remains complicated because it is necessary to demonstrate that the protected elements have been included in the new work.

As early as 1998, the judgment in Divertissimo v. Sportissimo, which innovatively recognized the protection of the format of the Divertissimo programme, nevertheless ruled out counterfeiting because « the combination of tests of knowledge and physical skill is the idea (…); the similarities between « Divertissimo » and « Sportissimo » are traits inherent in all the game shows and cannot be appropriated privately, (…) the differences between the two works go far beyond and largely ward off the fortuitous similarities (…); they exclude even partial counterfeiting (…)  »

A very recent case further illustrates this difficulty scenario in a conflict between one the author of the screenplay Paris Invisible and the producer of the documentary series Paris Mystères.  The Paris Court of Appeal admits the originality of the scenario because of original layout and developments but judges on the other hand that the similarities invoked only emerge from « banal ideas or characteristics » and rejects the counterfeiting. ( CA Paris, pôle 5, ch. 2, 8 oct. 2021, n° 19/14879, X. c/ Sté Bonne Pioche Production).

This reluctance on the part of the courts makes it difficult to protect and effectively exercise the protection of formats by copyright and leads to the consideration of protection based on unfair competition and parasitism.

Protection of formats through unfair competition and parasitism

Unfair competition and parasitism are common law actions, which can be applied to the takeover of audiovisual forms.

In this context, the applicant must demonstrate that the conditions for retaking a format constitute an act of unfair competition generally by proving the existence of a likelihood of confusion between the two broadcasts.

Thus, in 2006 about the Marches de la Gloire, the Court considered that «  it is not acceptable to plagiarize the program of a competitor, adopting, in addition to the theme, the construction, the division and the duration, the structure of the sequences and the style of presentation. (…) TF1 used the same presenters and the same filmmaker while they had not severed all links with Antenne 2 (…). The broadcasting by TF1 of the program « les marches de la gloire » (…) constitutes an act of unfair competition. »

It should be noted that the courts tend to sanction slavish copying rather than mere borrowing and that the mere existence of similarities or common themes between broadcast formats is insufficient.

The action for parasitic competition can also be considered and makes it possible to sanction the borrowing of characteristic elements of a format to take advantage of the efforts of its competitor or the reputation of its program without having to demonstrate the existence of a likelihood of confusion. The applicant must then provide proof of the loans and the damage he suffers as a result.

Thus, a judgment of the Paris Court of Appeal sanctioned Carson Prod for parasitism, which had co-produced two musical programs with France Télévisions Les Chansons d’abord and Du côté de chez Dave (CA Paris 22 October 2019) and awarded the plaintiff 40,000 euros in damages.

The Court rejected the infringement because the plaintiff was merely defining « a set of ideas or intentions, which may apply to many shows, or a concept, not protectable by copyright. »  but granted the requests for a conviction for free-riding, noting that the programs repeated several characteristics of the initial program ‘Chabada’ such as artistic choices, the choice of scenery or the distribution of musicians on the set.

While this decision is interesting for authors and producers wishing to defend the resumption of their formats, the courts nevertheless remain very demanding to recognize acts of unfair competition or parasitism.

Thus, about the programs Le Zapping (Canal +) and Vu (France Télévisions), the requests of the encrypted channel were rejected.

Canal+ invoked that France Télévisions had produced the program Vu following the cessation of Zapping and taking up the concept, the mode of construction, the state of mind and the same format. The judges rejected the application of unfair competition, stressing that « zapping » programs are an established genre and that the similarities observed are therefore legitimate for this type of program. (TC Paris, 21 octobre 2019, Groupe Canal + c/ France Télévisions).

It is also noted that in many cases, the lack of recognition of copyright infringement also leads to the dismissal of claims of unfair competition and parasitism.

Thus, as regards Paris Invisible and Paris Mystères, the applicant invoked parasitism in the alternative, pointing out that he was at the origin of the project before the producer terminated the author’s contract.

The judges do not follow this logic and decide that « the producer terminated the contract with the author as he was authorized and nothing prevented him from producing a series on a similar theme a few years later, this one being « libre parcours ». and that the producer « it has been shown above that the subject has been approached in a different way ». (CA Paris, pôle 5, ch. 2, 8 oct. 2021, n° 19/14879, X. c/ Sté Bonne Pioche Production).

More recently, parasitism has been accepted, but in the case of audiovisual formats that have already been used.

Thus, the utilization by an advertising company of the format of the video of Inès Reg « Mets des paillettes dans ma vie, X. ! », initially posted on Instagram was sanctioned on this basis alone.          

The judges deny the video copyright protection because it is a recording in which the comedian solely « seize the moment without having either the will or even the consciousness to create » but then admit the parasitic use that has been made of it by the advertiser, without any effort and to benefit from the work and notoriety of the comedian. The sentence is limited to 2000 euros in damages, the advertisement having been withdrawn very quickly after the formal notice of the advertiser( TJ Paris, 3e ch., 2e sect., 16 avr. 2021, n° 19/14555, I. Reg et X. c/ SAS Sixt ).

As a result, Konbini also obtained a conviction from a candidate for mayor of Cabourg for the resumption of the « Fast & curious» show format in a campaign clip entitled Fast & Cabourg (TJ Paris, 3e ch., 1re sect., 1er juill. 2021, n° 20/03225, SAS Konbini c/ I.  : inédit).

In this case, Konbini invoked only parasitism and won his case, on the grounds that the campaign video  reproduced « identically all the characteristics of the format, namely a rapid and rhythmic sequence of questions in the form of proposals for binary answers, presented together, horizontally, on full screen, in white on a black background and in black on a white background,  and posed to a guest, only visible, facing the camera » and was awarded € 15,000 in damages.

In conclusion, both program writers and producers have an interest in formalizing their concept of program and format in writing before communicating it. They must consider their defense strategy in the event of a takeover of the format by a third party because the protection of audiovisual formats is difficult to obtain as well as to implement. In this context, it is necessary to contact a specialized lawyer to develop the best possible strategy in view of the actual facts and situation.

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