25 December 2012

IP and TV Show Formats

'The Fashion of TV Show Formats' by Stefan Bechtold argues that
 Over the last years, a vibrant global market for TV show formats has developed. New game show, casting, soap, telenovela, documentary and other formats are sold to broadcasting stations in dozens of countries, leading to a worldwide multi-billion dollar industry. As an analysis of U.S. and European intellectual property law demonstrates, TV show formats are difficult to protect by intellectual property rights. Standard theory would predict that in the absence of intellectual property protection, the TV show format industry has insufficient incentives to invest in creative innovation. This article presents a novel theory to explain why the TV show format market is thriving despite a low level of format protection. On the supply side of the industry, demand for TV formats is hard to predict, return on them is highly skewed, and market participants are both developing original formats and imitating others’ formats. On the demand side, TV formats are experience goods, and TV viewers sometimes prefer familiar products. As a result, the TV show format market is subject to herding effects on both sides of the market. The interaction of supply-side and demand-side herding leads to fashion cycles in TV show formats. The TV show format industry uses the limited protection against format imitation, but has adapted to the fashion cycle. This article tells the story of how an industry has developed institutions enabling it to cope with uncertain demand and unpredictable profitability, while benefiting from limited appropriability of innovation and from the fashion cycles which underlie the innovative process.
After noting that neither trade dress nor patent law protects against imitating published TV formats, Bechtold considers copyright and unfair competition law.
In the United States, copyright law grants protection to “original works of authorship fixed in any tangible medium of expression.” While the potential media of expression are very broad, it is a guiding principle of U.S. – and, in fact, international – copyright law that copyright cannot subsist in ideas, facts, procedures, or concepts. As a result, and in contrast to patent law, copyright grants exclusive rights in the expression of a protected work, while its theme, plot, and ideas may be freely borrowed. As a result of the idea/expression dichotomy, the idea of running a cooking show is not copyrightable, while the expression of that idea in a particular show may be subject to copyright protection.
The idea/expression dichotomy is at the heart of the debate on whether TV show formats are copyrightable. And it is at this stage that many copyright claims against TV format imitation fail. A copyright infringement occurs if the plaintiff can prove that he owns a valid copyright in a work and that the alleged infringer copied protected elements of that work, making the plaintiff’s and the infringer’s works “substantially similar.” This requires that the infringer has misappropriated protectable expression. If the infringer has only built upon the idea of the plaintiff’s work, the copyright in that work has not been infringed. Even if a court finds that a TV format has copied copyrightable elements from another format, it also has to find both formats to be “substantially similar.”
In addition to the idea/expression dichotomy, other copyright doctrines contribute to the difficulty of protecting TV show formats. Under the scènes à faire doctrine, courts will withhold copyright protection if an expression embodied in a work necessarily flows from a commonplace idea, so that the unprotectable idea preordains the expression. Under the related  merger doctrine, courts will not hold that a work’s original expression is copyrightable if the underlying idea can effectively be expressed in only one way.78 In such cases, the expression and its underlying idea are indistinguishable, and the merged item is not eligible for copyright protection.
Even though the scènes à faire and merger doctrines severely limit the possibility of protecting TV show formats by copyright law,  they can still be protected as a compilation under Section 103 of the Copyright Act.  In fact, the value of a TV format often stems from an interesting combination and symbiosis of various elements.  A collection of preexisting materials or data arranged in a particular way can be copyrightable.  Although facts or ideas cannot be protected by copyright, their compilation may be if the selection, coordination, and arrangement process exhibits a sufficient level of originality.  While it is not unthinkable that a TV format might contain an arrangement of elements that can be protected as a compilation, a typical format which includes the plot, theme, characters, and similar items will simply be a collection of unprotectable ideas.
In general, copyright law is not very sympathetic to granting protection to TV show formats. This becomes apparent when analyzing the case law on published TV formats. In general, courts have been unwilling to grant copyright protection to TV formats. Most claims are dismissed, or settled out of court. When Fox Family, producer of Race Around the World, filed a copyright infringement suit against CBS’s production of The Amazing Race in 2000, the injunction was denied without discussing the copyright claim, and the case was voluntarily dismissed. When, shortly thereafter, CBS sued Fox over an alleged similarity between Survivor (CBS) and Boot Camp (Fox), the case was also dismissed and settled in a confidential settlement agreement.
But even when litigation continues, courts are leaning away from copyright protection of TV formats. In 2003, CBS sought a preliminary injunction against the broadcasting of I’m a Celebrity … Get Me Out of Here! by rival station ABC because of alleged similarities to Survivor, which had been a big success for CBS. Judge Loretta Preska of the U.S. District Court for the Southern District of New York declined to grant the injunction. In an opinion delivered from the bench, Judge Preska found no substantial similarity between copyrightable elements of both formats. She noted that both shows “combined standard, unprotectable elements of reality shows, game shows and other television genres, and used them separately to create the programs.”
She also declined to grant protection to the Survivor format as a compilation, holding that the format consisted of a combination of unprotectable generic ideas. Recognizing that it is very hard to protect TV formats by copyright law, format developers and producers in the U.S. have turned their attention to unfair competition law. Setting aside confusion-based doctrines, which seldom prove helpful, common-law misappropriation torts are of only limited assistance, as they are severely limited by the preemption doctrine and by federal copyright law. Things look more favorable for plaintiffs if the case involves alleged breach of confidence. The litigation over Wipeout and The Glass House included, in each case, allegations that the format imitator hired productions staff from the original format developer in order to benefit from their experience and, potentially, confidential information. Such allegations can be very effective, even if they are only used as a threat in settlement negotiations.
Breach of confidence claims do not help the original format developer in a pure case of published TV format imitation. In practice, in many disputes over published TV format imitation, format imitators do not only observe the format characteristics on TV, but also lure away former staff from the original format developer. The industry has increasingly realized that, given the low protection U.S. intellectual property law affords published TV show formats, breach of confidence claims can be an important weapon against TV format imitation. Apart from employment relationships giving rise to breach of confidence theories, however, U.S. intellectual property law provides TV formats with very limited protection against imitation.
Under European intellectual property law, the situation is somewhat similar, although slightly more heterogeneous. As in the United States, whether European copyright law protects a TV format against imitation depends on whether the format is a copyrightable subject matter and whether substantial copying of copyrightable elements occurred between two formats. While the European Union has increasingly harmonized copyright laws across EU member states over the last 25 years, the European acquis communitaire does not cover all areas of copyright law. One of the areas of European copyright law which has not been harmonized by the legislator  is the required standard of originality. While some European copyright directives have created standards of originality for particular work categories, outside their reach European copyright law fluctuates between an originality standard based on the “author’s own intellectual creation” (originally stemming from Continental European copyright systems) and a weakened “sweat of the brow” approach (originally stemming from the United Kingdom).
In recent years, the Court of Justice of the European Union has initiated an increasing harmonization of the standard of originality. Starting with a decision in 2009, the court has held on several occasions that a work must express “the author’s own intellectual creation” in order to be eligible for copyright protection.
The next few years will show what the relationship between this standard and the British approach really is. As no case law on TV show formats at the EU level exists and as, according to the Court of Justice of the European Union, it is still up to the national courts to determine whether a particular work fulfills the standard of originality, the article will now turn to the TV show format case law of the EU member states.
Germany has developed the most elaborate case law in Europe in this regard. In Germany, a rich academic literature on television-show formats has been developing over the last 20 years, and at least 15 court decisions have dealt with the protection of TV show formats. German courts usually decline to grant copyright protection against TV format imitation. The leading case involved an alleged imitation of a French TV show by a German TV station and was decided by the highest German court in civil matters (the Bundesgerichtshof) in 2003. In the French weekly show L’école des fans, which was initially broadcast from 1977 to 2002, children aged between four and six sang a song by a featured celebrity singer and received a grade for their performance. The celebrity was present in the show and sometimes sang the song along with the child.
In 1993, the German TV station broadcast a German version of the show which continued until 2006. The French company sued for copyright violation, arguing that the German show had copied the sequence of the show, the camera work, the dramaturgy, and the positioning of the candidates from the French version. The German court ruled in favor of the defendant. It held that the French show format was not a copyrightable work protected under German copyright law. While the court acknowledged that putting together the elements of the show format might represent some creative achievement, it held that a mere set of instructions on arranging elements was not subject to copyright protection even if the elements themselves might be copyrightable. As a result, format developers have not been successful in using German copyright law to prevent TV format imitation.
In France, similarly, copyright infringement actions against TV format imitation have often failed either because of the idea/expression dichotomy or because only non-copyrightable features were copied between similar formats.
In the United Kingdom, copyright protection of TV formats against format imitation likewise stands on shaky grounds. Various attempts to include formal format protection in U.K. copyright law failed in the 1990’s. In a TV format case from New Zealand, the Privy Council – New Zealand’s highest court of appeal at that time – held that the subject matter of a particular TV format broadcast in the U.K. (Opportunity Knocks) lacked sufficient certainty and unity to be copyrightable. This has become a landmark case on copyright protection of TV formats in the common-law world: In 2005, the High Court of the United Kingdom restated key principles of that decision in a case concerning magazine format copying, and drew an analogy with TV formats. Also in 2005, the Federal Court of Australia dismissed copyright claims against an alleged copy of a home renovation TV show on similar grounds. As a result of this case law, TV formats are hard to protect under U.K. copyright law.
While many European copyright systems are reluctant to grant protection against TV format imitation, TV format creators have sometimes been more successful by using unfair competition doctrines. Unlike the situation in the United States, in many European countries both intellectual property and unfair competition law are federal in nature. As a result, no preemption doctrine exists to assist courts in delineating either body of law.
The relationship between misappropriation doctrines and intellectual property protection is a complex one in Europe, but misappropriation doctrines frequently play a larger role than in the United States. Despite some harmonization of unfair competition law on the European level, apart from confusion-based claims  the unfair competition laws of various European countries vary greatly in the level of protection they grant against unfair appropriation of a competitor’s product or service. At one end of the spectrum, France has an elaborate system of protection against “parasitic behavior” (concurrence parasitaire). In Germany, it is not unusual to take action against product imitation not only on copyright grounds, but also concurrently on the basis of unfair-competition-based doctrines of unfair copying or slavish imitation. At the other end of the spectrum, U.K. common law has no special provisions prohibiting imitation beyond intellectual-property- or confusion-based claims,  and U.K. judges have upheld the freedom to imitate on many occasions. This heterogeneity in approaches is also reflected in the way national unfair competition laws treat TV format imitation. Under French unfair competition law, TV format copying may be considered either as ordinary “disloyal” competition (concurrence déloyale) or as parasitic behavior (concurrence parasitaire).  Parasitic behavior requires neither confusion on part of the public nor a direct competitive relationship between both companies; but it does require extra elements that are not required for a copyright claim. It is similar to the misappropriation doctrine under U.S. common law, but much more expansive in scope and application.
Given the expansiveness of French unfair competition law, it is not surprising that French courts are comparatively open to applying such doctrines to TV format cases. One case of slavish imitation involves the U.S. format Rescue 911. A leading French public TV channel (Antenne 2) broadcast a reality show called La Nuit des Héros (Heroes’ Night) based on the U.S. format, which Antenne 2 had licensed from CBS. Two months after the show’s host had resigned from the show and from Antenne 2, a private TV channel competitor (TF1) broadcast a similar show entitled Les Marches de la Gloire (Steps of Glory), featuring the same host and using the same staff. Antenne 2 sued TF 1 for unfair competition, including commercial parasitism. In 1993, the Versailles Court of Appeal found TF1 guilty of both disloyal competition and parasitic behavior. The court cited the substantial similarities between the competing shows (same concept, construction, rhythm, cutting pattern, presentation style, illustration of moral values of daily life and sport, etc.) as well as the fact that TF1 had hired not only the same show host but the entire former team from Antenne 2, effectively disrupting Antenne 2’s activities.  In the end, the court ordered TF1 to pay damages of 55 million French Francs, at that time the largest fine ever imposed in France for unauthorized copying of audio-visual content.
In Germany, several courts have had to decide whether TV format imitation violates unfair competition laws, but have usually denied such violation on a variety of grounds. While it may be theoretically possible for TV format copying to violate German unfair competition law in exceptional circumstances, no German court thus far has come to that conclusion. Finally, owing to the limited scope of unfair competition torts in the United Kingdom, in particular the lack of a broad misappropriation tort, the possibility of protecting TV formats by using unfair competition law is rather limited in the U.K.
As this analysis has shown, it is hard to protect TV formats against imitation under U.S. copyright law. In Europe, despite the harmonization of intellectual property laws over the last few decades, TV format imitation disputes are still subject to national laws. As far as pure cases of published TV format imitation are concerned, in Germany and the United Kingdom, TV formats are hard to protect by either copyright or unfair competition laws. While the situation looks similar in France with regard to copyright law, French unfair competition law is slightly more open to format protection, due to its broad “parasitic behavior” misappropriation doctrine, which is not necessarily preempted by French copyright law. When the format imitation also involves hiring staff from the original format developer, breach-of-confidence claims based on unfair competition doctrines may prove effective. This may explain why original format developers in Europe, as in the United States, are increasingly raising unfair competition or breach of confidence allegations, rather than copyright-based claims, against format imitators. In general, however, in all the countries analyzed, protecting TV formats against imitation is a complicated, uncertain, and cumbersome process.

24 December 2012

States and Identities

'Beyond Identities: The Limits of an Antidiscrimination Approach to Equality' by Martha Fineman in 92(6) Boston University Law Review (2012) 1713-1770 compares
the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility.
The U.S. Constitution is ancient by international standards, and it embodies and idealizes an antiquated political-legal subject and a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity. 
In discussing the responsive (and responsible) state Fineman comments that
Powerful, resource-giving institutions like the family, corporations, schools, and financial institutions are both constructs of the state – brought into existence and maintained under the legitimating authority of law and the regulatory machinery of the state – and also the way in which the state constitutes itself. It is the legitimating authority of law and the regulatory machinery of the state that give content and consequences to these institutions and in doing so, illustrate the state’s established monopoly over legitimate means of coercion.
Any contemporary call for a more responsive state must begin with the observation that the choice is not one between an active state on one hand and an inactive state on the other. The state is always at least a residual actor. The choice is one between the state exercising responsibility through the structuring and regulation of its various institutions or adopting of a policy of benign neglect and abandonment of responsibility in which its inattentiveness facilitates and enables patronage, spoilage, and corruption by powerful individuals and organizations. Insistence that the state be restrained and government be small, as is prominent in American politics today, ignores the many ways in which the state, through law, shapes and governs institutions from their inception to their dissolution.
The state must also be understood as a political construct as well as a functioning entity, and as such it expresses certain preferences and values that should be explored for their accuracy and desirability. Our current conception of the state as being in need of restraint is built around the privileging of autonomy in which individuals, institutions, and the state itself are viewed as isolated entities, appropriately separated from one another. This perspective reifies all three, particularly the individual and the institutional, which are viewed as natural and ungovernable rather than socially constituted. The paramount value under this conception is liberty, whether it is expressed as mandating autonomy for the individual or a free market for the institutional, and the state is the enemy. In consequence, this perspective limits the development of understandings of the potential for the state to effectively regulate institutions, modifying or structuring them in more responsive ways. A restrained state is a state that can easily avoid assuming responsibility for inequalities and unwarranted privilege because its position as the ultimate societal authority, while recognized, is ideologically contained. It is important to concede both that the state can be and has been abusive, overreaching, and authoritative, and that avoiding this overreaching requires vigilance. Nonetheless, advocating vigilance is not the same thing as urging abandonment or retreat on the part of the state.
In contrast to the restrained state, the responsive state accepts responsibility for its operation and also that of the societal institutions which it has helped bring into existence. The responsive state views individuals and institutions as intertwined, symbiotic, and interdependent with each other and also with the state and its apparatus. Institutions are shaped through law and their operation profoundly affects individual options, opportunities, and well-being and the ability of the state to effectively govern. State responsiveness recognizes that the intertwining of the individual with the institutional can be either generative or destructive, warranting supervision and correction by the only entity capable of doing so: the modern state. This state, in turn, should be understood as a cluster of relationships, institutions, and agencies reflecting and shaping public norms and values through law and policy. Those relationships include the relationship between citizen and state, as well as between state and institutions. In a responsive state individuals realize that they too comprise the state and instead of standing outside of it they have a responsibility to see it is working effectively. Perhaps we could call this relationship “democracy.”
The roadblocks to realizing a truly democratic and responsive state in the United States are many. Responsiveness is under suspicion, particularly if it costs money. Recently, the economic recession has served as an excuse and provided political cover for arguments to further dismantle what was an already weak commitment to social welfare programs. However, the real hurdles to the realization of the idea of a responsive state are ideological, epitomized in the particularly distorted vision of what constitutes autonomy, independence, and individual responsibility that has overtaken political rhetoric and action in the United States.
To overcome the obsession with autonomy and individualism that has impoverished American political discourse and resulted in the cynicism and disaffection of so many citizens, it will be important to emphasize that the basic foundational premise of the responsive state is inclusive, collective, and radically democratic and egalitarian. The state, in this view, is constituted for the “common benefit” and, thus, any privilege or favoritism resulting from state action or concession must be justified in those terms. The focus should be on the state’s responsibility for and relationship to those who are privileged, as well as those who are disadvantaged. Structures that have served to unequally allocate society’s resources to the benefit of the few must be monitored and reformed. To do this, it will be necessary to ensure more transparency in law and policymaking and to provide far greater opportunities for public assessment of legislative and executive actions so that the idea of a democratic correction for political impropriety is more than just an empty promise in political science textbooks.
Initially, the common-benefit premise would have to be applied both as a basis against which to assess the appropriateness of existing privilege in society and as a means by which to analyze the generation of new forms of privilege. This Article began by documenting the vast and growing inequality in American society. The construction and valorization of the restrained state has helped to facilitate that inequality, and its resultant privileging should be assessed critically to determine whether policies that perpetuate the status quo are justified. Politicians will tell us that this is an impossible task when what they really mean is that it will place them in an uncomfortable position, particularly with those who are most privileged. The answer to their concerns is to reiterate that the responsive state begins and ends with the concept of political responsibility. This responsibility is placed on politicians and state functionaries to ensure access to and opportunities within the institutions that have been entrusted with generating and allocating wealth, power, and position in a market society. Political responsibility precedes and is an essential complement to the idea of personal responsibility, which focuses only on individual autonomy and free-market ideals.
In understanding how we might conceive of a responsive state, it is important to realize that just like the individual and the institutional, the state is vulnerable. This is true whether the state is perceived as restrained or as responsive. Powerful entrenched interests can hijack even the most egalitarian impulse for their own purposes. Governmental structures and practices can facilitate such distortions. As recent arguments in favor of corporate subsidies and advantages for the wealthy have illustrated, assertions that privileging is done for the common good are susceptible to manipulation. This is particularly true in a political system that is contentious, obfuscating, and renders legislators and executives ineffective by tolerating processes that are prone to manipulation and distortion of facts and arguments rather than conducive to problem solving and cooperative bipartisanship. The challenge is how to structure state responsiveness in light of its vulnerabilities, namely the possibility of capture and corruption, and the current tendency of the political system to actually provide incentives for overreaching, repressive tactics, and democracy-frustrating “hyper-partisanship.”

US Privacy

The 236 page Open Book: The Failed Promise of Information Privacy in America by James Nehf argues that
With financial and other personal information about us in countless databases, and with companies such as Facebook and Google collecting data about their users to drive profits and satisfy expectations of shareholders, there is a pervasive concern that we have little control over access to potentially harmful uses of that information. Moreover, many consumers believe that little can be done to address the problem except to give out as little information as possible and try our best to monitor our credit reports and financial accounts in an effort to detect unexpected activity if it occurs.
By not enacting strong information privacy laws in the non-governmental sector, the U.S. Congress and the fifty states have effectively defaulted to a market-based model of privacy protection that relies heavily on individual self-policing and market incentives as the primary means of information control. A self-policing privacy protection model could be effective if a market for information privacy were possible — if well informed individuals could shop their privacy preferences effectively.
This book-length paper examines the reasons why this is highly unlikely and why privacy laws in the United States (or the lack thereof) will not protect legitimate consumer interests in the years to come. Part 1 shows why information privacy is a social or societal value and not just an individual concern. Part 2 examines in more detail why individualist, market approaches to privacy protection are destined to fail. Part 3 continues this theme and examines research in behavioral sciences about how consumers make decisions in market transactions. Part 4 concludes by critiquing the “new” privacy framework released by the Federal Trade Commission. While the framework contains hopeful rhetoric calling for greater emphasis on societal solutions to privacy concerns, most of the framework continues to rely heavily on individual notice and choice in transactions that involve exchanges of personal information.