Davies & Anor v TV3 Network Services Limited

High Court, Auckland, CIV 2004-404-1130, Williams J, 13 June 2005

The first and second plaintiffs claimed copyright in the “format” of a proposed television programme “Ghosts are Real”. They claimed to have “developed and produced” a format in a series of promos for a television documentary series about ghosts. The plaintiffs further claimed that they owned copyright in the proposed programme by means of a “format” in photography, a competitive promo, and a tape of the same, a press kit given to TV3 and what was described as footage of certain stories. The assertion was that TV3 had infringed the plaintiffs’ “copyright and format” in the proposed series because TV3’s television series Ghosts was “substantially similar in format” to the plaintiffs’ works.  Details of alleged similarities of content, storyline, camera work, editing, footage, presentation and dialogue were extensively pleaded. 

The decision involved an interlocutory application by TV3 for particulars as to the use of the term “format”. In ruling in favour of such particulars, Williams J referred to the observations of the majority of the Court of Appeal and of the Privy Council in Green v Broadcasting Corporation of New Zealand [1988] 2 NZLR 490; [1989] 3 NZLR 18 on the need to bring claims to copyright in a format within one of the statutory categories of copyright works (i.e. literary or dramatic works) and on some of the difficulties with hybrid works. 

Williams J held that it was not enough for the plaintiffs to plead copyright in a “format” which resides in or can be demonstrated by or gleaned from the pleaded documents:

In terms of Green, the plaintiffs’ works must be entitled to copyright as dramatic or literary works themselves. In terms of the authorities, copyright cannot reside in ‘format’ alone without that additional identifying feature. At bottom, there must be a ‘work’ in which copyright subsists. Pleading that copyright subsists in a ‘format’ is insufficient.

He therefore ordered a pleading which particularised the works in which copyright was said to subsist - even if the distinctive features of those works amounted to or contained a ‘format’.