The "Dilemma" of Television Format Protection in France

A recent ruling by the Paris Court of Appeals (12 September 2012) , while not directly touching on copyright law, may well be of interest to readers.

Endemol, the producers of well-known reality television shows "Loft Story" and "Secret Story" (both derived from "Big Brother") took issue with rival producer ALJ Productions' reality show called "Dilemme" (dilemma), claiming that its production constitued unfair competition and free-riding.

The legal grounds were thus rooted in the general tort of negligence (Section 1382 et seq. Civil Code) and not copyright.  The French legal system has a highly developed and sophisticated law of unfair competition ("concurrence déloyale") and free-riding ("parasitsime").

The general rule is that copying something that is not protected by a specific intellectual property right (such as copyright) is not, in and of itself, unlawful.  However, the circumstances of the (lawful) copying may result in liability.  In essence, these circumstances can take one of two forms:  either the copying can result in a likelihood of confusion (classic unfair competition) or the copying can be said to constitue an attempt to free-ride on the coattails of another (parasitical behaviour).

In the case giving rise to the decision, Endemol was of the view that the defendant's production took elements of its shows that were sufficient to create a likelihood of confusion on the part of the TV viewer.  Among the elements it highlighted were the following:  the fact that the candidates were enclosed and isolated in a house, were constantly filmed, were subject to a system of elimination, the decor and layout of the house, the method of nominating and voting for or against elimination of a given candidate, the casting of specific types of candidates (e.g., the jock and the bimbo).

The Court was having none of it.  In its view

"...the similarities noted by Endemol Productions[...] between the formats of "Loft Story" and "Secret Story" are intrinsically related to the genre of "enclosure" relaity TV and do no more than use the standard codes in this area without creating any particular identification with the formats claimed by [Endemol]. 

Furthermore, while it is true that the well-foundedness of an action in unfair competition based on the similarity of competing goods or services must be assessed in light of resemblances, these must be examined having due regard for the overall impression given to the public, with only those similarities relating to identifying elements of the competing product being taken into account..."

In other words, in assessing whether a likelihood of confusion exists, a court must look only to those elements that indentify or distinguish the source.  This makes perfect sense and is a logical consequence of the fact that the legal criterion is "likelihood of confusion", which obviously pre-supposes that the source material can be uniquely identified or distinguished.

The Court concludes:

"...the similarities advanced by [Endemol], in addition ot the fact that they are inherent to the genre of programmes at issue [...], cannot, having due regard for the specific overall impression created by "Dilemme" as compared to "Loft Story" and "Secret Story", be said to create a likelihood of confusion on the part of television viewers with respect to the format's origin, which they will not associate with Endemol."

Finally, as regards the separate claim for parasitical conduct, it was rejected both because Endemol failed to adduce evidence of its "intellectual and financial efforts" and because the defendant did provide evidence of its substantial investment in "Dilemme".