03 Nov Minute to Win It infringement claim dismissed

A Danish citizen’s claim that Endemol Shine Group had infringed his copyright with a series called Minute to Win It has been rejected by a High Court Judge.

Derek Banner developed a format for a TV game show called Minute Winner in which contestants were given one minute to win something, but his claim that eight sixty-minute episodes of Minute to Win It – broadcast on ITV2 in 2011 – were an infringement of his company’s copyright, were in breach of his confidence, and amounted to passing off, has been struck out.

Mr Banner put information about his idea in a document which he claimed to have pitched to a Swedish TV production company at a meeting in 2005 (“the Minute Winner Document”). He asked the production company’s representatives to sign non-disclosure agreements, but they refused. Mr Banner claimed that they acknowledged that everything which was said or disclosed at the meeting would nonetheless be in confidence.

Shine Limited acquired the Swedish company, which sold the idea for a new game show to a part of the NBC Universal group, the show going through three different titles before adopting the name Minute to Win It. The show was broadcast in the US in 2010 and in the UK the following year.

The issue which the Judge had to decide in assessing the application to strike out Mr Banner’s claim was whether the format of a television game show or quiz show is separately capable of being protected by the law of copyright. In doing so, he assessed the key cases and commentary which look at this question, in particular a case in New Zealand in which Hughie Green failed to establish copyright in the format of the popular game show Opportunity Knocks.

The Judge decided on this point that it is at least arguable that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This was even though the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance, and the show will contain elements of spontaneity and events that change from episode to episode.

The Judge found that the contents of the Minute Winner Document were unclear and lacking in specifics, and that, even taken together, they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were commonplace and indistinguishable from the features of many other game shows, and there was no similarity between the idea outlined in the Minute Winner Document and the Minute to Win It shows, beyond the fact that they both involved games played against the clock for one minute.

Even if the Minute Winner Document did qualify for copyright protection, a comparison of it and the Minute to Win It programmes made clear that Mr Banner could not hope to make out his allegation that a substantial part of his work had been copied.

The claim in breach of confidence failed because Mr Banner had already brought an unsuccessful claim on the same basis in Sweden, and was barred from pursuing it in England. And the passing off claim failed because Mr Banner never had any customers or clients in England, and because there was no risk of confusion between the two shows.

The case is a useful indicator of how the courts will approach the tricky question of the protection of TV format ideas by copyright law. While a format can be protected in principle, unless the concept is clear and specific, and sets out a coherent framework or structure which could be relied upon to reproduce a show in recognisable form, it will not qualify for protection.