Abstract
With the success of programs like ‘Master Chef’, ‘The Voice’ and ‘America’s Next Top Model’ franchising worldwide, the trade market of TV reality shows formats is expanding in many countries. South Korea is also actively participating in the market with exports of program formats like MBC’s ‘Dad! Where Are We Going?’ and tvN’s ‘The Genius’. Copyright disputes have also increased together with the market growth while courts in different countries are passive in protecting format copyrights of reality shows. It is quite difficult for the courts to set up a boundary for copyright protection regarding reality shows’ formats, since they are not mainly based on a written script. This study takes a look at South Korea and the United States’ court decisions on copyright infringement of reality shows formats. The study compares South Korea’s case of SBS v. CJ E&M and the United States’ case of CBC v. ABC, focusing on criteria used by the courts in protecting format copyrights of reality shows.
Ⅰ. Introduction
‘The Voice’, the TV singing competition program that was first aired in Netherlands, is now familiar to the viewers worldwide since it is aired in a number of different countries as ‘The Voice of UK’, ‘The Voice of China’, ‘The Voice of Afghanistan’ and etc. Similar cases could be easily found in other programs like ‘Master Chef’, ‘Project Runway’, and ‘America’s Next Top Model’, as the programs exported their formats to other countries. These imports and exports show how a format of a broadcasting program is now being recognized as an individual object of transactions and even copyrights.
South Korea is also catching up with the trend as it actively participates in the international format trade market. The broadcasting network MBC exported the format of its reality show ‘Dad! Where Are We Going?’ to China’s Hunan TV, which was later aired as ‘爸爸去哪儿(baba qu nar)’. 13 more programs from South Korean networks were exported in 2013 to countries like China, Turkey, Netherlands and etc.[1] The format trades seem to benefit both sides as South Korean networks can get additional profits from the exports, while the importing networks get assured of low-risk by importing programs that have already been proved with successes in South Korean market.
With the expansion of international format trade market, South Korean networks are now putting more focus on guarding the copyrights of their program formats. The focus has naturally led to copyright disputes of program formats, especially among TV reality shows as the nature of the shows make it very difficult to set boundaries for copyright protection. Scripted programs like TV dramas and movies are relatively easy to judge on infringement of copyrights since they are based on written scripts with specific characters and outlines. But it is more difficult to judge on plagiarism of reality shows as “they are mostly unscripted, relying heavily on the interaction of the cast members.”[2]
Since they are aware of such difficulty in legally solving the copyright disputes, South Korean TV reality shows had always tried to make agreements instead of taking the format copyright matters to the court. Therefore, there was no precedent case showing a clear standard set by Korean court in judging copyright infringement of TV reality show formats. However, a recent dispute between SBS and CJ E&M about their program formats was brought to court, becoming the first case to be judged about the format copyright of TV reality show.
This study focuses on analyzing Korean court’s decision of the above case to find out what kind of standard was used by the court to decide on copyright infringement of TV reality show format. This study will then take a look at the dispute between CBS and ABC-the first case which the United States’ court decided on TV reality show format copyright issue- for a comparison as the United States hold a longer history of format copyright disputes.
Ⅱ. Definition of Program Format
The definition of ‘program format’ varies among different studies, but it could be put together as “a know-how that makes it possible to successfully reproduce a TV program, consisting of factors that could be repeated and used as basic structure of an episode.”[3] Broadcasting program format is usually traded in a form of ‘bible’, a combination of documents that show the details and basic guideline of the program. The bible includes “the story and structure of the program, guidelines for stage designing, background music and computer graphic, target audience of the program and the ideal time slot for the program airing”.[4] The bible could also include a consulting service provided by the format owner to the format buyer, such as “advising on how the program host should talk, how the camera angle should be set and how the program should be progressed”.[5]
Ⅲ. South Korea’s Protection on Copyright of Reality Show Format
- Examination of Existing Law
South Korea’s Copyright Act Article 2.1 states that ‘works’ protected by the law are the creative productions in which human ideas or emotions are expressed. Article 4 of the same law presents the examples of ‘works’ which include novels, speeches, literary works, paintings, cinematographic works and etc. As the law itself points out, the ‘creativeness’ of the author should be ‘expressed’ in order to be protected by Copyright Act.
South Korean court also mentioned in previous cases that:
“the copyright protects creative expressions that appear on the outside…not the idea, theory or emotion…and even in the case of expressions, if they do not contain the author’s creativity and individuality that is enough to distinguish the work from other authors’ work, they could not get protected under copyright”[6].
Considering the law and the court’s earlier decisions, TV reality show format should also have the producer’s creativity, originality and individuality expressed in specific details in order to get protected by Copyright Act. “Typical incidents or backgrounds that are often used to describe a certain topic” will not get protected by the law as they “fall into the category of ideas”[7].
Moreover, for the court to decide that the defendant’s work infringed copyrights of the plaintiff’s work “the defendant’s work should be produced on the basis of the plaintiff’s work and the two works should have practical similarity”[8].
- SBS v. CJ E&M
(1) Background of the Case
The plaintiff, South Korean TV network SBS, was airing the couple matching reality show ‘Jjak (The Mate)’. In each episode, the show casted a number of male and female contestants who were looking for marriage partner in the near future and made them stay together for a week in a house called ‘the love village’. The contestants abided by 12 rules set by the show which contained the rules like ①males should wear the provided blue shirts while females should wear the pink shirts, ②the contestants should call each other by their designated numbers like ‘man number 1’ or ‘woman number 2’ while they are not allowed to share their real names, ③the contestants will be given lunch box for their lunch and whom they can have lunch together with will be decided through a certain game process, ④the contestants will introduce themselves on the second day and etc. Under these rules, the contestants had nothing else to do other than looking for their ‘mates’ for a week as they were isolated from the outer world.
The defendant, South Korean media company CJ E&M, was airing ‘Saturday Night Live (SNL) Korea’ on one of its channel ‘tvN’. SNL Korea was hosted by different celebrities in each of its episodes with several skits like parodies of politics and celebrities and slapstick comedies. The program aired a 6-minute-comedy skit called ‘Jjyak: Convicts Special’ in one of its episodes, which seemed to carry a similar format from SBS ‘Jjak’ as it described male and female convicts trying to find their mates in order to get released. In the skit, the convicts introduced their criminal charges and sentences while males were wearing blue shirts and females were wearing pink shirts. They also went through a game process to decide the lunch partners. The narration during the program was recorded by the narrator that appears on SBS ‘Jjak’ as CJ E&M casted the same narrator for the role. The program produced and aired three more skits on the same topic.
(2) Plaintiff’s Argument
The plaintiff sought compensation for damages due to copyright infringement by the defendant, as it claimed that ‘Jjak’ had its original and creative expressions shown in the progress of the program. The plaintiff argued that the fact that the defendant hired the same narrator from ‘Jjak’ shows the intention of plagiarism by the defendant. SBS listed 13 different expressions of ‘Jjak’ that it believed were plagiarized by CJ E&M’s ‘Jjyak: Convicts Special’.
- The calligraphic style used for expressing the title ‘Jjak’
- Naming the contestants as ‘man number 1’, ‘female number 1’ instead of using their real names
- The way ‘Jjak’ names each episode; ‘Jjak: Divorced Singles Special’, ‘Jjak: Old Bachelors Special’ etc
- The setting of ‘love village’ and the 12 rules
- Contestants arriving and introducing themselves without a host
- Contestants introducing themselves while standing in front of others sitting in a row
- Contestants expressing their feelings by choosing the lunch box of the person they like
- Consistently showing individual interviews with each contestant throughout an episode
- The phone call opportunities with families given to the contestants
- Games with dating chances as rewards
- Showing the caption ‘(we are) waiting for the applicants for the next Jjak (episode)’ at the end of an episode
- The use of narration
- Use of certain lines like ‘love is all about the right timing’, ‘we are all living in the era of affection, who in this love village do you think is similar to your own mate?’
(3) Court’s Decision
The court acknowledged that the defendant’s work was produced on the basis of ‘Jjak’ as the defendant admitted itself that it was parodying the program. But the court decided the case was not a copyright infringement since the 13 expressions argued by the plaintiff are mostly just ideas, not specific expressions. The court defined these expressions as “either ideas that are not protected by Copyright Act, or expressions that already have been widely used by other programs as well, lacking creativity”[9]. The court did find ⑬the use of same lines in the defendant’s work, but it was still not viewed as a copyright infringement as the lines were used in different settings in two programs.
The court also emphasized that the 13 expressions argued by the plaintiff only take up a small amount of the work as “the work mostly consists of incidents, behaviors and conversations between the contestants and monologue of each contestant”. The court added that “considering the fact that the plaintiff’s work is a reality couple matching show, the work’s creativity exists on specific incidents between the contestants”.[10]
Ⅳ. The United States’ Protection on Copyright of Reality Show Format
- Examination of Existing Law
The Copyright Act in the United States is the Federal Law while the contract matters are judged under State Laws.[11] A copyright infringement plaintiff must prove:
- ownership of the copyright and (2) copying by the defendant. Ownership can be satisfied by providing proof of a copyright registration certificate. To determine if copying occurred as a factual matter, a plaintiff may provide direct or circumstantial evidence of access to the infringed work and substantial similarity between the two works. Access is defined as the opportunity to copy. Alternatively, the access requirement may be presumed if there is so-called “striking” similarity between the two works, such that there could be no other reasonable explanation for such a high level of similarity than the fact that the alleged copier had access to the allegedly copied work.[12]
Same as South Korean courts, the United States courts do not protect ideas. Therefore, TV reality shows formats should also contain particular expressions of their ideas in order to get protection under copyrights.
- CBS Broadcasting Inc. v. ABC. Inc.
(1) Background of the Case
The plaintiff CBS, a broadcasting network, was airing the reality show ‘Survivor’. The show starts as it abandons the casts in the wild and divides them into tribes. The tribes will compete in challenges given by the host and every three days, the losing tribe must go to Tribal Council to vote out one of their members. Halfway through the program, the challenges shift to individual competitions as the tribes merge into one. The final winner of the show earns millions of dollars as a prize.[13]
The defendant ABC, also a broadcasting network in the United States, was airing the reality show ‘I’m a Celebrity-Get Me out of Here (Celebrity)’. The show starts as it drops eight B-list celebrities into a remote part of Australia, where they are forced to fend for themselves with few amenities. The celebrities are provided with better foods if they accomplish physical challenges involving humorous or repulsive tasks. Through call-in voting, the at-home audience determines which celebrities are voted out of jungle. The last surviving celebrity is crowned king or queen of the jungle, and his or her charity receives the largest sum of prize money.[14]
(2) Plaintiff’s Argument
CBS filed a preliminary injunction motion against ABC, arguing that it infringed CBS’s copyright in Survivor by “copying the format of ‘Survivor’ stranding a group of strangers in a remote and uncivilized location, requiring the contestants to provide for themselves, subjecting the contestants to challenges to win immunity or luxuries, and eliminating them one by one in a ritualized ceremony at the end of each episode,” and that ‘Survivor’ was “the first show to combine the elements of its unique format” [15].
(3) Court’s Decision
The New York federal judge found that the “common elements of the two programs such as a remote jungle location, physical contests, and serial elimination, consisted of unprotectable ideas and not copyrightable expression”[16]. The court then looked at the differences of expressions in two programs which are protectable by copyrights, with analyzing “total concept and feel, …, characters, plot,…,and setting”[17]. Based on the comparison, the court denied CBS’s preliminary injunction motion.
The court contrasted “‘unalterable seriousness’ of ‘Survivor’ against the ‘comedic’ tone of ‘Celebrity’”[18] to show how total concept and atmosphere of the two were very different from each other. The elimination sequence in ‘Survivor’ was quite ritual as it took place in Tribal Council with a serious background music, but the elimination in ‘Celebrity’ was announced in the morning while the contestants enjoyed drinking coffee and champagne. The court stated that even the visuals of the two were distinctively different as ‘Survivor’ showed artful photography while ‘Celebrity’ showed home video look.
Although both programs had host and contestants, the court found the composition and roles of characters to be different. The host in ‘Survivor’ played two roles in the show as a judge and group therapist, relatively not appearing that often, while the host of ‘Celebrity’ frequently appeared in the show as a comic entertainer. The contestants were also different as ‘Survivor’ sought ordinary people for participation while ‘Celebrity’ casted celebrities who are known to the public.
The court also mentioned the difference between the plots of the two programs. ‘Survivor’ required its contestants to participate in physically difficult challenges that often resulted in “a life or death decision”. But the challenges in ‘Celebrity’ were rather “silly or gross” with “only the loss of ‘upscale rations’ at stake”[19]. The voting systems were also different as ‘Survivor’ voted each other off within the contestant group while ‘Celebrity’ invited at-home audience to vote for elimination.
When judging about the settings of two programs, the court concluded that “the mere concept of a remote, inhospitable locale was too ‘generic’ to be protectable on its own,” and focused on comparing “visual expression” in the shows. Since ‘Survivor’ was based on “dry Outback bush area” while ‘Celebrity’ was featured in “dense vegetation”, the court found that “the inhospitable settings were expressed differently” [20].
Ⅴ. Conclusion
South Korea and the United States courts seem to stand on the same ground regarding copyrights of TV reality show formats as they protect ‘expressions’ but not ‘ideas’. Even when the courts found expressions, they carefully looked into each one of them to see if it contains creativity rather than examining the combination of them. SBS’s ‘Jjak’ had an interesting combination of the 13 expressions, but the individual expressions were not so original when they were separated from each other.
The courts of the two countries also appear to prefer giving freedom to future authors, rather than vesting a certain show with full copyrights of a program format. Like Korean court mentioned in its ruling for SBS v. CJ E&M, it is indeed very difficult to separate copyrightable expressions in TV reality show format since they do not take up a lot of portion of the show. More emphasis is given to “the chemistry of the cast and its connection to the audience, none of which can be defined or easily protected by legal theory.”[21]
However, the courts’ decisions on both SBS v. CJ E&M and CBS Broadcasting Inc. v. ABC. Inc. cases did not declare that TV reality shows are devoid of expressions that could be protected under copyrights. Considering the market growth in format trades and increasing disputes, there is a possibility that South Korea and the United States courts will slowly shift their positions to more actively protecting the format copyrights of reality shows. Especially since South Korea’s quasi-government agency Korea Creative Contents Agency (KOCCA) is now preparing to join the international organization ‘Format Recognition and Protection Association (FRAPA)’, the awareness of format copyrights is expected to increase within the country.[22]
[1] 이경민, 방송 콘텐츠 해외 진출이 새로운 바람, ‘예능 포맷 수출’, Etnews (Apr. 17, 2014), http://www.etnews.com/20140417000111 (last visited Jan. 2015).
[2] Chae Jung-Hwa & Lee Yeong-Ju, A Study On the Criteria of Copyright Protection of Broadcasting Program and Substantial Similarity: Focusing on the Reality Show, Journal of Communication Science, Vol. 10, Issue 1, 288, 290 (Mar. 2010).
[3] 김명중, 한선, & 정영희, 방송 포맷의 권리보호 방안 연구, Korea Creative Content Agency, 10 (2012).
[4] 은혜정, 텔레비전 프로그램 포맷: 프로그램 포맷과 콘텐츠 산업, Communication Books (2013), http://terms.naver.com/entry.nhn?docId=2268401&cid=42192&categoryId=42213.
[5] Supra note 3, at 10.
[6] 2010. 11. 11. Decl. 2009Da16742 (Supreme Ct., Nov. 11, 2010).
[7] 2012Gahap 80298 (Seoul Central District Ct., Aug. 16, 2013).
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Supra note 3, at 73.
[12] Kent R. Raygor & Edwin Komen, Limitations on Copyright Protection for Format Ideas in Reality Television Programming, Media Law Resource Center Bulletin, Issue 4, 97, 100 (Dec. 2009), available at http://www.sheppardmullin.com/newsroom-mentions-833.html.
[13] Supra note 2, at 300.
[14] Daniel A. Fiore & Samuel E. Rogoway, Reality Check, Los Angeles Lawyer, 34 ,36 (Jul. Aug. 2005), available at www.lacba.org/files/lal/Vol28No5/2169.pdf.
[15] Id. at 37.
[16] Andrew J. Thomas & Farnaz M. Alemi, Expression is the Name of the Game in Reality TV, Los Angeles Daily Journal (Aug. 16, 2012), available at http://www.google.co.kr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCIQFjAA&url=http%3A%2F%2Fjenner.com%2Fsystem%2Fassets%2Fpublications%2F10417%2Foriginal%2FJenner_Block_DJ_8.16..12_E.pdf%3F1345580677&ei=8VGpVNWFKYr28QX2_oLoBQ&usg=AFQjCNFx6vDyyND6sG7X7Dyc5EqbTyPMHg&sig2=DjcyKWua1nf313Yea5dA9Q&bvm=bv.82001339,d.dGc&cad=rjt.
[17] Supra note 11, at 37.
[18] Id. at 37.
[19] Id. at 37.
[20] Id. at 37.
[21] Supra note 12, at 120.
[22] 박종민, 한콘진, 싱가포르 ATF서 한국 방송포맷 해외진출 지원, Game Focus (Dec. 9, 2014), http://gamefocus.co.kr/detail.php?number=41542 (last visited Jan. 2015).