Exploitation of Formats:
Preliminary investigation through trade journals and interviews with formats industry representatives (in 3 key television industry trade fairs NATPE Las Vegas, DISCOP Budapest and ATF Singapore) indicate that the legal uncertainty concerning protection of formats has lead to the development of non-legal strategies and commercially oriented protection mechanisms to foster formats trade. During the consultations for the specially commissioned Gower’s Review of Intellectual Property in the UK (Gowers, 2006), one of the largest format makers of UK – the BBC – refused to suggest any furtherance of legal remedies to protect formats from copycatting. Its response that “current laws provide adequate protection” and “a more prescriptive approach will create difficulties” effectively illustrates that solutions other than legal ones are being favoured by the industry to protect and exploit formats internationally.
Hear the lead researcher of this project Sukhpreet Singh talk about the impetus to undertake this project. He talks of a number of commercial strategies which may be behind the growth of TV format rights despite the lack of specific legal protection.
Genesis of the Research
At the same time, alternative dispute resolution mechanisms such as ‘mediation’ have also emerged as strategies to create a dialogue between format originators and format copycats. FRAPA (Format Recognition and Protection Association http://www.frapa.org/), for example, is an organization which on one hand calls for a legal protection mechanism, but has already put in place an elementary format registry and has successfully provided mediation services for some high profile format rights disputes (FRAPA, 2008).
International media trade fairs have also helped to establish elaborate protocols of format trading. Moran and Keane (2004, pg. 198) in their definitive study of TV formats in Asian countries suggest that there is a growing recognition of the protocols of format exchange between format creators in spite of the fact that bigger and highly fragmented TV markets provide more chances of format copycatting. This change, according to them, is because of a mix of factors such as better access to original formats from around the world, widespread condemnation of copying practices and industry vigilance.
In order to look at the exploitation and non-legal strategies in a systematic manner, the researchers reviewed a wide variety of academic literature (some of which is given below). Details may be sought from the research team. This review informed the protocol used to conduct exploratory interviews at the three international trade fairs (NATPE Las Vegas, DISCOP Budapest and ATF Singapore).
Highlights of Academic Literature Reviewed
Non-legal Strategies of Format Rights Exploitation and Protection
The results from the exploratory interviews conducted at the three international trade fairs (mentioned above) were specified by a 5 weeks business fellow placement of the lead researcher within Fremantlemedia (one of the largest formats producers of the world) trying to get an in-depth experience of formats trading. This placement provided evidence on long term format protection strategies for business development in markets around the world for three key formats of the company - Idols, Got Talent and Hole in the Wall.
In this section, the reader finds a short write-up of exploitation and protection strategies identified, as well as video material illustrating some of the strategies. Also mentioned are quotes in italics collected from interviews conducted at the various trade fairs that the lead researcher attended (see methodology section for details).
Large format producers depend on enhanced information flow to detect format copycatting as well as know about new and exciting formats which they wish to buy. This is achieved using a network of spotters (or information providers) around key territories around the world.
“We have a good spotter’s network in the big format creating countries of the world - US, Holland, Australia, Scandinavia - which we use to buy new shows but they also feed us things about what is being developed.” [EVP, Distribution, Major Format Developer]
“The spotter's network is so secretive that I only know the names of the spotters. They work as freelance production executives who channelize things they hear to me and the aim of it is about getting the knowledge of promising shows coming through from our competitors rather than trying to spot rip offs.” [EVP, Distribution, Major Format Developer]
The formats industry uses non-legal and commercial means to solve format rights disputes as far as possible. They rarely seem to depend on a bundling of tradable intellectual property rights (such as trade marks and copyright) as evidenced below.
“Relationships and trust are very important in the formats business. Gentlemen’s agreements are still the corner stone of most global television business where most large companies observe other people’s IP.” [SVP, Content Partnerships, Major Format Developer]
“There is also a degree of taint around about very obviously ripping off someone else’s show. There is a degree of honour and trust within the industry – with some notable exceptions – generally speaking it’s seen as something slightly shameful to be very obviously ripping off somebody else’s show.” [EVP, Distribution, Major Format Developer]
Patterns leading to Strategies (click to see video)
This is mainly achieved through ‘legally’ worded letters (usually through in-house lawyers of format producers) which emphasise to format copycats that copyright and/or unfair competition oriented legal action will be pursued if commercial means fail to have a satisfactory solution to their dispute.
“Most of the times I have a contact with the party which is sort of naughty and you can solve in a simple way i.e. by sending a couple of angry letters which helps usually.” [VP, Legal, Major Format Developer]
“When a broadcaster announces that they are doing a show with certain key elements such as judging talent of jugglers or singers, then if we think they have copied us, I write to the broadcaster saying we are concerned that the show they have announced sounds similar to our such and such format and hence we would like to remind them that we own the intellectual property on the show. This is usually enough to either stop them from doing what they are or visibly shift away by making changes from what they are doing.” [EVP, Distribution, Major Format Developer]
The first format of a genre to reach the market i.e. be broadcast usually beats the intended copycats. This is also true of copycats who beat the original to the broadcast schedule. Hence, by a speedy roll-out throughout the main television territories of the world, the original tries to maintain its legitimacy. This strategy can only be employed by companies having production bases throughout key television territories.
“Speed to market is the key to protecting our formats. We have bases in every major television territory. Know-how of successful previous versions coupled with a highly skilled technical team ensures we get the commission to produce a licensed version.” [Research Manager, Major Format Developer]
“We are an international worldwide production and distribution company with offices across the globe - anyone who places a format with us for distribution gets access to all these territories. Hence presence on the ground enhances the ability to protect our formats. In other words, the way we are structured helps ensure protection.” [EVP, Distribution, Major Format Developer]
Format originators who provide substantial format development support vis a vis the crown jewels of formats business i.e. style guides and production bibles and other technical know-how (supplied under confidentiality agreements) present such a highly complex format product that it dissuades or makes it difficult for copycat producers to easily copy the original. This usually needs to fit visual brand identity of the broadcaster and failure to do so can create audience dissonance which ultimately leads to the failure of the format.
“If you want to copy one of our formats properly, then you really have to get hold of its bible. We hold those relatively tightly, in production territories we don’t give the production bibles to the broadcasters – its our production team that has the bible. In licensing territories, we do pass the bible across to broadcasters or other production companies, but I don’t know too many examples of our bibles being passed around thereafter – because it can be traced back to someone.” [EVP, Distribution, Major Format Developer]
“The technical know-how or the ‘production bible’ is the crown jewel which we wish to protect. We never release it without a contract has been signed.” [SVP, Content Partnerships, Major Format Developer]
Successful format originators have a network of ‘flying producers’ who help to keep the original format's values and systems intact in all territories by policing the recreation of formats religiously as per company standards, thereby giving it a distinct positioning. They also bring to each new production the knowledge gained in producing all the previous productions - they know what has been tried in other territories, and of which what has worked and what hasn’t.
“We can control production quality through our flying producer system.” [VP, Production, Major Format Developer]
“Trusting the flying producers when he/she says what works and what doesn’t helps in making sure the recreated format succeeds.” [EVP, Distribution, Major Format Developer]
Tape sales of a highly rated television programme (such as a taped international version of ‘American Idol’) to key territories helps to drive sales of the formats. In this case, a broadcaster is supplied with a license by the format producer to broadcast the original tape for a specific number of times on its specific channels. Local audiences experience a highly developed product and thereby get an appetite for creation of a local version.
“It helps that we have very strong tape sales operations. Broadcasters around the world not only rely on us for formats but also finished shows – tape sales. So, if you copy our formats, you are cutting off your supplies.” [Head of Licensing and Sales, Major Format Developer]
“The international growth of one of popular formats was initially slow but it got a major push from tape sales of its American version - territories which had bought the American tape as it is wanted to create their own local versions. Eventually it has been sold to more than 43 countries. Tie-in with tape sales helped us set a benchmark for local versions which only we can deliver, hence copycat producers are not successful with broadcasters.” [SVP, Content Partnerships, Major Format Developer]
Format producers with a diversified portfolio of television programmes are able to influence buyers to buy formats in conjunction with other programmes. If potential television buyers try to copy formats of a producer, then it is unlikely to find favour with that producer when the producer comes out with new programmes and formats. In other words, a broadcaster dependant on a large diversified producer for other types of television programmes from this producers’ library will not attempt copycatting a format if it wishes to maintain relationships and continue the supply of other programmes.
“Being local and being large means that our company is noticed - a copycat can surely expect our local representative to knock on their doors in case of a suspected infringement. We have the size and scale in terms of churning out regular formats and a copycat will cut off the supply of not only future licensed versions but also tape sales from us.” [SVP, Content Partnerships, Major Format Developer]
“Our reputation and good name in the market which helps to solve cases quickly.” [VP, Legal, Major Format Developer]
“Because we come out with more and more outstanding formats, the broadcast community understands the importance of keeping good relations with us, hence they tend not to jeopardize relations with us by bringing out a format too close to our own.” [Senior TV Sales Manager, Distribution, Major Format Developer]
Format originators attend international television trade-shows to showcase their formats to the industry. Though many formats are sold before appearing at trade shows, launching a format at a show legitimises the creator as the originator, and hence dissuades copycats by creating a pecking order or ground rules for business relationships.
“Trade fairs are used only to build relationships for formats. Most large formats are sold to production houses before arriving on the floor. But for shows where a really fast roll-out is necessitated along with marketing the uniqueness of the show that’s where a trade fair helps to create an event around the format and pitch the show to a range of broadcasters.” [EVP, Distribution, Major Format Developer]
“MIP (in Cannes) is one of the important trade fairs for us. It is about sitting down with our buyers as well as one of the few opportunities that the whole company could come together. Before MIP, we internally decide a list of priority formats we wish to push at the market.” [Head of Formats & Acquisitions, Major Format Developer]
Format producers usually attempt to suit the local culture of their recreated version so that these are accepted easily by broadcasters and audiences. Produced in sync with a producing nation’s established programme brand values helps to keep the format for a long time on schedules. This prevents copycats from originating their own versions as there is a finite market share for a certain programme within a certain genre.
“The more you ensure that the buyers expectations of that format are fulfilled, the more successful that format will be. And that is the secret about formats travelling.” [EVP, Distribution, Major Format Developer]
“It works better to create local relationships and slightly modify our format property to suit local tastes. It is about creating the right pitch so that local broadcasters get convinced about the format – so a lot of personal selling is involved.” [EVP, Distribution, Major Format Developer]
Formats producers also nurture the format brand and extend it to merchandising and off-air licensing so that it drives audiences back to the on-air product. Create brand extensions (e.g. spin-off programming) and B2C merchandising.
“We nurture format brands by having a consistency of graphics, music, programme structure, etc. As time progresses, there is a need to evolve the brand and hence being a large global company helps as successful ideas from one territory can be implemented in others.” [VP, brand Development, Major Format Developer]
“Our popular format has been licensed into ancillary products and merchandising such as interactive games, T-shirts, perfume and even a car marque!.” [VP, Licensing, Major Format Developer]
“A strong brand has several benefits – its can leverage a whole host of products. Not only opens various revenue opportunities but also embeds the products in people’s lives and feeds back to make audiences loyal to the show audiences loyal to the TV show.” [EVP, Distribution, Major Format Developer]
Model of TV Formats Exploitation and Protection