Seven Network (Operations) Limited v Endemol Australia Pty Limited  FCA 800
On 6 August 2015, the Federal Court dismissed an interlocutory application by Seven Network (Operations) Limited (Seven) to restrain the Nine Network (Nine) and production company Endemol from continuing to broadcast the kitchen reality TV show, The Hotplate.
Seven alleged that, by producing and broadcasting episodes of The Hotplate, Nine was infringing Seven’s copyright in its program, My Kitchen Rules (MKR).
The dismissal by the Court of Seven’s application means that the remainder of the first season of The Hotplate can continue to be broadcast (at least until the final hearing).
The question before the Court was whether there existed a reasonable basis for Seven to argue that Nine had copied the format, or a large part of the format, used in MKR, such to warrant an urgent and immediate injunction, until a final determination is made by the Court after a full hearing.
According to Seven, each episode of The Hotplate produced by or on behalf of Nine reproduces in a material form:
- key elements of MKR sufficient to constitute a substantial part of one or more of the MKR literary works (including the format pitch and presentation for MKR and the “Production Bible” for MKR); and
- the combination and series of incidents (including situations, events and scenes), plot, images and sounds embodied in the MKR dramatic works.
The Court dismissed Seven’s application, finding that the balance of convenience of either granting or withholding the interlocutory relief weighed in Nine’s favour. In particular, the Court noted the difficulty faced by Nine in re-establishing the momentum of The Hotplate if it were to be abruptly halted by injunction and then “shelved” for the period of time necessary to determine the substantive proceeding and any subsequent appeal.
However, Justice Nicholas did find that Seven has a reasonably arguable case that the formats of MKR and The Hotplate are very similar and that this close similarity is (at least to some extent) the result of copying by Nine.
In an official statement, Seven has confirmed that it will continue its case. The Court has suggested that an early final hearing should take place before the launch of any second season of The Hotplate.
It has proven challenging, in Australia and internationally, to establish copyright infringement in reality TV formats. This is because copyright protects the expression of an idea, but not an idea itself.
In the only previous case about copyright infringement of a reality TV format in Australia, Nine Films & Television Pty Ltd v Ninox Television Ltd  FCA 1404, a production company Ninox was unsuccessful in its claim that the ideas of its show Dream Home were copied by Nine for its show The Block. In that case the Court held that the similarities between the shows were too broad to constitute a copyright infringement.
For the purposes of its interlocutory application, Seven placed emphasis upon its contention that Nine infringed Seven’s copyright in the MKR dramatic works.
To prove copyright infringement in a dramatic work, an applicant first needs to prove that there are enough unique elements in the format to constitute an original dramatic work so that copyright subsists in the format, and then needs to prove that a substantial part of its original dramatic work was copied. This is challenging as reality TV shows are usually unscripted and often derivative of other shows. In the substantive hearing to come, Seven will need to establish that the combination and series of incidents, plot, images and sounds are elements that together constitute an original dramatic work and that a substantial part of that work was copied.
During the application Seven alleged that Endemol had possession of a copy of the MKR “production bible” however this was not referred to in the judgment. It will be interesting to see how Seven argues its case in the substantive hearing to come in respect of the literary works (including the format pitch and presentation for MKR and the “production bible” for MKR).
In addition to copyright, Australian format owners have also sought to rely on other forms of legal protection, including trade mark law, the law of confidence, misleading and deceptive conduct under the Australian Consumer Law and the tort of “passing off” to protect the misuse of their formats. The approach taken by format creators to Australian legal protection of their formats has the potential to alter with this important “format rights” case.
Dan Pearce, Partner
T +61 3 9321 9840
Trent Taylor, Partner
T: +61 7 3135 0668
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