No copyright in TV comedy format: Rinkoff v Baby Cow

High Court (IPEC) says no copyright in comedy series format. Ruling confirms high bar for formats to attract copyright protection in the UK.

What has happened? 

• The High Court (IPEC) has dismissed a rare claim for infringement of copyright in a TV format. The court held that copyright did not subsist in the claimant's comedy series format, and even if it had existed, the defendant's own comedy series would not have infringed.

• Although there is yet to be a successful claim for copyright infringement relating to a format in the UK, it is (at least, in theory) possible for a format to qualify for copyright protection as a dramatic work, and there are other ways in which elements of formats can be protected. This is why the industry treats most formats as proprietorial works. There is also stronger protection for formats in the EU and other jurisdictions.

What's the case about? 

The claimant, Joshua Rinkoff, a writer and comedian, created a show called 'Shambles' in around 2013, describing it as a sitcom series centred around a live comedy night. There were two series, both made available on YouTube channels in 2013 and 2015, respectively. 

The defendant, Baby Cow, is a prominent producer of comedy shows, and produced a series of five shows called 'Live at the Moth Club' (LATMC). It also combined live comedy with a behind the scenes narrative. The show aired on TV channel Dave between December 2022 and January 2023, before becoming available for streaming.

Rinkoff argued that the format of Shambles was protected as a dramatic work under the Copyright Designs and Patent Act 1988, and that the defendant infringed his copyright by communicating LATMC to the public. Rinkoff identified eight features of Shambles' format which he argued, taken together, attracted copyright protection:

• A setting in a comedy club struggling to make ends meet based in a real-world venue which is not a full-time purpose-built comedy club.

• The blending of fictional scenes involving situation comedy, on the one hand, and actual stand-up performances by both up-and-coming acts and established names filmed in front of a real audience at the club, on the other.

• The staging of interactions between the fictional characters of the sitcom scenes and inter alia the stand-up comedians and audience members of the live performance scenes.

• The use of cinema verité techniques including handheld camera footage, the use of natural lighting, the use of dialogue that appears to be unscripted and improvised, and the use of what appears to be a real-life audience at a real comedy venue.

• A promoter character, Harry, who is the protagonist of the show and faces significant challenges in putting on a successful comedy night.

• A hapless club owner character, Greg, who owns and runs the dilapidated venue and who tries to help the protagonist but usually makes things worse.

• An intern character and junior member of the team running the comedy club (named Joe in the First Season and Toby in the Second Season), who likewise acts with good intentions but often just makes things worse for the protagonist.

• The presence of a variety of industry characters working behind the scenes in the comedy industry who come up with bad or surreal ideas for the comedy night that never work. 

In defence, Baby Cow argued that (a) the format of Shambles was not protectable as a dramatic work because it was neither designed to be performed nor capable of being performed, (b) the format was not identifiable with sufficient precision and objectivity to be capable of being protected as a copyright work (c) the features of the format as pleaded were unprotectable ideas, lacking detailed creative choices attributable to Rinkoff. Even if copyright did subsist, infringement was denied due to lack of copying.

What did IPEC find? 

The High Court found that the claimed features of the format were not consistently applied in every episode of Shambles, and when considered collectively, did not have the necessary qualities to amount to a dramatic work capable of copyright protection. In particular, the features were not connected with each other within a coherent framework, taken together did not distinguish the show  from other similar shows, and failed to establish a formula which could be repeatedly applied so as to enable the show to be reproduced in recognisable form. 

The judge cited Snowden J in Banner Universal Motion Pictures v Endemol Shine Group, stating that, for a format to be considered a dramatic work, the features would need to be organised into a unified work which could be performed. The court noted that Rinkoff's claimed features set out only general ideas which were inadequate in enabling anyone to create, perform or reproduce an episode of Shambles. For example, the description of the promoter character in Shambles was not adequately described such that anyone could perform the part based only upon the description. Similarly, in another recent case - Jukic v BBC - the High Court held (in a summary judgment application) that copyright did not subsist in a treatment for a TV show because the features alleged to copied, which included an element of competition, a panel of judges, and a focus on makeup, were high-level, commonplace ideas. 

Furthermore, any similarities between Shambles and LATMC were found to be very general, and there were no grounds to draw an inference that the defendant had copied Rinkoff. For example, the protagonist of Shambles is presented as a promoter, himself a comedian/performer, who is down on his luck. However, the protagonist of LATMC is a 'comedy booker' character, who is not a comedian/performer. The snippets from the comedians' sets are much longer in LATMC, taking up to around half the running time of the show. The club owner character in LATMC also plays a less significant role in the show than the club owner character in Shambles. The judge stated that the alleged similarities did not indicate copying, rather only reflected the use of stock characters.

What does this mean for you? 

This case reinforces Banner, which confirmed that TV formats can theoretically attract copyright protection under UK law but only where:

• there are a number of clearly identified features which, taken together, distinguish the show from others of a similar type

• the distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
  

Documenting comprehensive details about a format is obviously key as is ensuring that those features are properly distinctive and detailed, not mere general ideas, and are consistently replicated across episodes. A good example of the level of detail that is sufficient  can be found in the Shazam case where the claimant was able to successfully enforce copyright in the Del Boy character from Only Fools and Horses as a literary work (more here). 

The fact that the claimed features of the format were not consistently applied in every episode of Shambles worked against the claimant in this case (although it is arguable that copyright would still not have been found to subsist even if those features had been replicated as they were commonplace general ideas). This aspect of the judgment is slightly at odds with the Shazam ruling where the character of Del Boy was found to have been developed through the written scripts over a number of episodes (but not all the episode scripts contained all features).

It is worth remembering that, in both this case and the Jukic v BBC case, the Court held that there would have been no infringement even if copyright had been held to subsist in the works in question. The similarities between the works were not sufficient for a finding of copying even when standing back and looking at the works as a whole. The fact that the elements in which copyright was alleged to subsist consisted of general ideas did not help in this regard.

Elements of formats are protectable in other ways, such as copyright or trade marks for catch phrases, trade marks for show titles or character names, copyright or design rights for sets and other visual material, contractual restrictions on key production personnel, confidential information protections in relation to initial discussions around a format and passing off arising from any false suggestion of a commercial connection with a well-known format.  There is also stronger protection for formats in other jurisdictions, including under the EU test for copyright where it is not necessary to have to fit an original creative work into the UK's 'closed list' of copyright works.