Out-Law News | 08 Sep 2010 | 3:58 pm | 3 min. read
Robin Meakin sent his idea for a gameshow, Cash Call Challenge ... Live!, to the BBC and to production company Celador in 2002.
The BBC subsequently broadcast two series of a programme called Come And Have A Go ... If You Think You Are Smart Enough (CHG), hosted first by Nicky Campbell and then by Julian Clary as part of the BBC's National Lottery programming.
Meakin claimed that the BBC programme was based on his idea and that it infringed the copyright in his proposal. He claims that this process was aided by the move of an executive from Celador, where he had also sent his proposal, to the BBC.
Mr Justice Arnold in the High Court made summary judgments on many of the issues in the case, saying that the case was not strong enough to justify a full trial.
"Mr. Meakin's claims are simply unreal," he said in his ruling. The judge said that Meakin's claim that his proposal had been seen by anyone who made the eventual BBC programme was not realistic.
"The defendants say that Mr. Meakin's case amounts to a series of conspiracy theories. I have to say that I agree with that assessment," he said.
Meakin's idea was that viewers at home would use their phones to participate in a live quiz against teams in the studio. The BBC quiz also incorporated audience participation, by computers, interactive television and live video phone.
"So far as the comparison between [Meakin's proposal] CML3 and CHG is concerned, it is very difficult to see that there is much similarity here at all even if one reads into the description of CHG as being implicit reference to use of a telephone," said Mr Justice Arnold. "Between CCL and CHG, one has simply the general similarity of interactivity linking the viewers with the studio audience. To the extent that they exist, the similarities are extremely general, and in my view they do not give rise to any inference of copying."
"I have considered all of the similarities that are relied upon by Mr. Meakin in each of his documents," he said. "In my judgment, the defendants are entirely correct to say that such similarities as exist between Mr. Meakin's proposals on the one hand and CHG on the other hand are no more than very general similarities at a high level of abstraction."
Even those aspects of the proposal and programme that were similar were not new, the Court found. Other programmes had already involved the use of premium rate phone lines, split playing and results programmes and the use of phone line income to fund a prize pot, the judgment said.
Meakin accepted that the programme had not copied the actual text of his proposal, in which he owned the copyright, but rather the ideas and concepts behind it. Mr Justice Arnold said that such uses could represent copyright infringement, but not in this case.
"I entirely accept that ... it is not necessary for text to be copied in order for a claim for infringement of literary copyright to succeed," he said. "I also bear in mind that there is a line of cases which supports the proposition that it can be an infringement of copyright in a novel or play to copy the plot of the novel or play even if the language of the novel or play is not reproduced."
"Even so, in my judgment the similarities between his three proposals and CHG on which Mr. Meakin relies amount to no more than general ideas at a fairly high level of abstraction and, moreover, commonplace ideas in the field of television game show formats at that," he said. "In my view, Mr. Meakin has no real prospect of success in establishing that a substantial part of the expression of any of Mr. Meakin's proposals has been taken."
Meakin's claims were based on the copyright in the documents he circulated to production companies and broadcasters.
Professor Martin Kretschmer of Bournemouth University has researched the intellectual property rights of those who create TV formats, a process which can involve everything from quiz design and basic structure through to specific production guidance.
Last year he told technology law podcast OUT-LAW Radio that a UK court had established that formats were not fully protected.
"In the UK the lead case is a 1989 decision by the Privy Council and it involves Hughie Green who was one of the most popular presenters on UK television on the game show Opportunity Knocks, and in that decision the Privy Council held that the format and structure on the package of the game show were insufficiently united to be capable of a performance so copyright law did not protect the loose language, the ideas behind the programme," he said.
"Other routes of protection would be unfair competition law which has been used in civil law jurisdictions and something like passing off in the UK which involves an element of deception which is very hard to prove," said Kretschmer. "The third major action relates to confidentiality because a lot of the preliminary work relating to format will rely on negotiations in exchange of information about programme ideas and they are often covered by a non-disclosure agreement."
Meakin told the court that there would be a separate trial for allegations of a breach of confidence.