Protecting TV Show Formats: Lessons from NBC’s Timeless
The TV show format forms the basis of all television series. However, what exactly is the nature of TV formats under the law and how can they be protected from imitation?
Such questions were raised by a recent lawsuit centering on NBC’s new Timeless series. In a suit filed against Sony Pictures Entertainment and NBC Universal, Spanish media company Onza Partners alleged that the NBC series was ripped-off from its Spanish language time travel drama El Ministerio del Tiempo (The Department of Time).[1] The suit alleges that Timeless was copied from a subtitled DVD of the Spanish show provided by Onza Partners as part of negotiations with Sony to produce an American version of its show.[2] Onza Partners is seeking an injunction against the production and distribution of Timeless, in addition to compensatory damages, on the basis of copyright infringement and breach of implied contract.[3]
TV show formats can be described as a composite of the various elements that form the underlying concept of a series.[4] A format will typically consist of a package of storylines, characters, themes, music, rules, settings, graphics, sequence of events and production guidelines.[5]
In the present case, Onza Partners described its format as “the adventures of a three-person government team (consisting of one woman and two men) traveling through time to thwart undesired changes to past events.”[6] In striking similarity, Timeless similarly consists of a trio of two men and one woman that travels through time in an effort to stop a criminal from altering the course of history.[7]
However, even if Timeless was copied from the Spanish series, it is not very likely that Onza Partners would succeed on its copyright infringement claim. Such imitations and knockoffs are often permitted due to the fact that formats are generally not recognized as legally protectable subject matter. Copyright law is not very sympathetic to granting protection to formats. In this context the main hurdle to protection is the idea/expression dichotomy. Formats have typically been held to constitute mere unprotected ideas, rather than concrete expressions.[8] The scènes à faire and merger doctrines similarly also greatly limit the ability of formats to receive copyright protection.[9] While these doctrines do severely limit the possibility of copyright protection, a format may still be potentially protected as a compilation.[10] As one court noted in a decision regarding the reality show Pros v. Joes, “although stock concepts and ‘scènes à faire’ are unprotectable under copyright law in and of themselves, their selection, coordination, and arrangement can be protectable, to extent that it reflects particular expression of ideas.”[11]
Due to the difficulty in protecting formats under copyright law, as Onza Partners did in its suit, format producers must often seek recovery through concepts of breach of confidence, misappropriation, implied contract and unjust enrichment.[12] While in the particular case of Onza Partners, the circumstances of their negotiations with Sony may give rise to a breach of an implied-in-fact contract, in the absence of such unique circumstances, format owners are often left with little recourse to protect their work from imitation. Consequently, competitors are often free to copy other formats with little impunity.
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