“Shambles” TV show format not protected by copyright as a dramatic work

In a recent judgment, the Intellectual Property Enterprise Court refused copyright protection to the format of an improvised comedy sitcom as a dramatic work. Even if the format had been protected, the court held it would not have been infringed by the defendant’s comedy mockumentary. The judgment illustrates the ongoing difficulties in the protection of TV show formats in the UK.

Background

Shambles is an improvised comedy sitcom created by the claimant featuring live stand-up and a behind-the-scenes narrative. The defendant company’s series Live at the Moth Club (“LATMC”) is a mockumentary that similarly combines comedians’ sets with backstage elements. However, LATMC is fully scripted, and its episodes are twice the length of Shambles’. 

The claimant had also known the Head of Development at the defendant company for years as fellow comedians and claimed the defendant must have been aware of Shambles as a result. 

Claimant’s key arguments

The claimant claimed that the format of Shambles was protected as a dramatic work (under s3(1) CDPA) and allegedly infringed by LATMC due to similarities in the premise, narrative, and characters.

The claimant claimed the format “consisted” of a “unique combination” of “a number of clearly identifiable features [specifically eight], which, taken together, distinguish it from other shows of a similar type”. Such features included the setting of a struggling comedy club, the blending of fictional scenes and actual stand-up performances, and specific descriptions of each character. This combination of features, as well as the “Shambles Philosophy” (a document setting out basic plotlines for particular episodes) allegedly created a coherent format for the cast to perform across the episodes. 

IPEC’s ruling

The court held that the format as pleaded was not a dramatic work and even if copyright did subsist in the format, it was not infringed by LATMC. 

Can a format be protected as an original dramatic work?

The parties could not identify any UK case in which a claim that a format was protected as a dramatic work had succeeded.

The judge emphasised that the purpose of dramatic copyright is to protect the skill and effort used to create, select, or in this case, combine the underlying concepts of the work, and the primary purpose of such work should be its capability of being performed before an audience. Films/TV shows and screenplays can be dramatic works (Norowzian v Arks Limited (No. 2) [2000] F.S.R. 363.; Kogan v Martin [2019] EWCA Civ 1645), although the judge commented that collected scripts may not be a single dramatic work (even if each individual script is itself a dramatic work) if the collection was never intended to be performed together. However, when it comes to format this was a more difficult issue.

The judge said that the meaning of ‘dramatic format’ involves the “characteristic features of the show which [are] repeated in each performance” (Green v Broadcasting Corporation of New Zealand [1989] RPC 700). So, in principle, TV show formats can be dramatic works – even if there is spontaneity or events that change from episode to episode. Affirming the High Court’s position in Banner Universal Motion Pictures v Endemol Shine Group [2017] EWHC 2600 (Ch), the judge emphasised that at a minimum, copyright protection in a format will not subsist unless:

1. there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and 
   
   
2. those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.

Was the format of Shambles protected as a dramatic work?

No previous TV format cases have successfully satisfied the above tests due to insufficient certainty as to content and insufficient unity for such works to be capable of performance. Shambles suffered the same fate. 

The key focus was the format as pleaded. The dramatic work was claimed to be a format which specifically “consists” of eight pleaded features. However, the judge found that these were not all present throughout the series – some characters described in the features were not present in every episode. Therefore, the pleaded format didn’t have “a fixed form of expression” and “fail[ed] sufficiently to identify [or] fully express the work in issue.”

Even if all eight pleaded features had been present in each episode, the features taken together only set out high-level ideas (unsurprising for an improvised show) and were “not connected to each other in a coherent framework”. Nor did they “set out a formula which could be repeatedly applied so as to enable the show to be reproduced in a recognisable form”. 

Other written documentation including the “Shambles Philosophy” did not describe the plot, storylines, filmic style or characters in sufficient detail to allow for a consistent narrative framework. The comedy club setting and the ratio of fictional sitcom to live stand-up were also described too broadly. Additionally, although the claimant did not rely on any copyright in the “Shambles Philosophy”, the judge considered that this did not amount to a screenplay and therefore did not form part of the dramatic work.

If the format of Shambles was protected as a dramatic work, was it infringed by LATMC?

Even if the format Shambles had been protected, the judge held it would not have been infringed by LATMC. 

The claimant argued that LATMC must have been written with Shambles in mind because the defendant’s Head of Development must have seen Shambles and would have influenced the other LATMC writers. Although the claimant dropped the direct/conscious copying claim at trial, it nonetheless maintained the indirect/unconscious copying claim. However, the judge believed that the other writers of LATMC had no knowledge of Shambles and found that despite the shows sharing the same central underlying idea, that by itself didn’t lead to an inference of copying. The shows’ similarities were at an “extremely high level of generality”: LATMC was more a faux documentary than a sitcom and the fact that both shows had incompetent characters was seen merely as a stock comedic device. As the judge commented, “competence is rarely funny”.

Key takeaways

This judgment illustrates the ongoing difficulties in the protection of TV show formats in the UK – the assessment requires specificity, coherency and repeatability, as well as a laser focus on the format specifically claimed. Here, the pleaded format consisted of all the eight features set out by the claimant. The lack of all eight features in each episode essentially meant there was insufficient repetition of the show’s characteristic features, which is the essence of a ‘dramatic format’. The judge distinguished this case from Baigent v Random House [2007] EWCA Civ 247; the claimants there had relied on the “Central Theme” of their book, but did not claim separate copyright for the “Central Theme” itself.

The combination of any features also needs to constitute more than merely high-level ideas. On this point, the judge acknowledged that the long-standing idea/expression dichotomy is a “notoriously slippery” concept which depends on the generality of the idea and is ultimately a question of degree.

Other interesting aspects of the judgment include the judge’s suggestion that a part-improvised show might be protected as a dramatic work, but the improvised performances themselves would not be considered part of the original work and may have separate performance rights. Additionally, following the position in the well-known case of Shazam Productions Ltd v Only Fools the Dining Experience Ltd [2022] EWHC 1379 (IPEC), this judgment also left open the question as to whether characters, storylines and an “imaginary world” could, if sufficiently described, enjoy protection as a dramatic work. 

Authored by: Quinn Liang and Heidi Hurdle