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a. Originality Assessment

Formats may be protected under copyright laws.  This assumption is valid basically worldwide.

That said and to be copyright-protected, a format shall be “original”.  What does “original” mean from a legal standpoint is not straightforward, but we have some clear-cut indications from case law:

a)   originality” is not a “unique/absolute” concept.  Works may copyright-protected even if they have some new/original elements which, however, are based on other non-original elements.  The assessment is a matter of fact.

b)     Such factual assessment is mainly carried out based on the following factors:

                        i.         title;

                       ii.         basic narrative structure;

                      iii.         stage setting”;

                      iv.         fixed characters.

To understand if a format may be protected as original, usually production companies carry out in-depth anteriority searches, in order to combine the existing factors of other formats.  Also, a search of legal precedents is crucial to set the scene: in this context, a useful tip is conduct searches concerning the requirements for film plots (the number of such precedents is of course very high and give useful hints to assess also requirements for TV formats). In addition, useful information and tools are provided by FRAPA,

 

the Format Recognition and Protection Association (www.frapa.org).

 

b. Format Protection

 

The first goal to protect a format is to demonstrate that it has been realized prior to the (allegedly) similar one of a competitor.  Such goal may be achieved in several ways, as follows:

a)     deposit the format with the relevant collecting societies.  Most of the collecting societies around the world (e.g., SIAE in Italy, SACEM in France, GEMA in Germany) allows authors to deposit their formats, in order to give them a precise date of start of protection. 

However, be careful: usually such deposit is not fully valid against competitors, so that if a competitor is capable to demonstrate that its own format has been realized prior to the deposit, then the latter may be declared unenforceable.

b)     use of print stamp / e-signatures.  There are several IT devices in the market allowing to insert a legally reliable date on a document (such as format structure).  Reference may be made to e-signatures token/USB keys, which are featured by time-stamps trusted by the reliability of the relevant service providers (which are usually certified by public authorities). 

Putting a time-stamp on your format structure/synopsis is surely a useful tip to contribute to format protection.

Authors:

 Saverio Cavalcanti Partner, Technology Media & Telecoms, Franzosi Dal Negro Setti