Production Incentives

Opinions vary on whether reality TV formats benefit from copyright protection. In the U.S., courts have looked at whether the elements in production bibles or format treatments passed the “originality” threshold in deciding whether to extend copyright protection (Latimore v. NBC Universal; and Milano v. NBC Universal). They have also applied the “substantial similarity” test to protectable elements when comparing two competing formats. If the similarities between two formats are limited to the generic concept for the shows or expressions that are standard to the topic and naturally flow from the concept, the courts will likely decide against extending any protection (CBS Broadcasting v. ABC; and Castorina v. Spike Cable Networks). In Canada, like in the U.S., ideas are not copyrightable and to benefit from copyright protection, the tangible expression of an idea must also meet an originality threshold In Quebec, the court held that a television format for a proposed show which was never produced and was not sufficiently detailed in the expression of the idea did not benefit from copyright protection (Cummings v. Global Television Network Quebec). Canadian courts have held that a sufficiently original expression of a television format will benefit from copyright protection, but whether or not a competing format constitutes infringement will depend on the extent of the similarities between them. If the differences outweigh the similarities, the court is likely to dismiss a claim of copyright infringement (Hutton v. CBC). There is, therefore, a reluctance to extend copyright protection to reality TV formats and in cases where copyright protection has been afforded, courts have not been generous toward claims of infringement against competing formats.