(BEFORE) THE PRIVY COUNCIL
LORD BRIDGE OF HARWICH, LORD ACKNER, LORD GOFF OF CHIEVELEY, LORD JAUNCEY OF TULLICHETTLE AND LORD LOWRY - 18 JULY 1989
Subjects : Copyright - Dramatic or musical performance - Script - Television show - Talent contest - Scripts claimed for standard introduction of competitors and same catch phrases used throughout show - No written text of shows put in evidence - Whether standard introductions and catch phrases amounting to 'scripts' - Whether use of standard introductions and catch phrases amounting to 'dramatic format',
The appellant (Hughie Green)
was a well-known entertainer who, between 1956 and 1978, wrote,
presented and compered a television talent contest in England
entitled 'Opportunity Knocks'. In 1975 and 1978 the respondent
(the 'alleged' thief) broadcast a similar television show under
the same title in New Zealand.
The appellant (Hughie Green) commenced proceedings against the respondent in the High Court of New Zealand for damages for passing off and infringement of copyright, claiming that copyright subsisted in the 'scrips and dramatic format' of the television show as broadcast in England. No scripts were produced in evidence, but in the course of examination the appellant claimed that he wrote the scripts of the shows, such as they were, by having the same form of introduction for each competitor and using the same stock or catch phrases throughout the show. In addition there was the use of a device called a 'clapometer' to measure audience reaction to competitors' performances.
The (original/first) trial judge held that there was no evidence that any part of the show was reduced to a written text which could be properly called a script, and dismissed the action.
On appeal, the Court of Appeal of New Zealand accepted that the evidence established the existence of scripts but concluded that the scripts, such as they were inferred to be from the evidence, did nor themselves do more than express a general idea or concept for a talent quest and hence were nor the subject of copyright. The court accordingly dismissed the appeal. The appellant (Hughie Green) appealed to the UK Privy Council. (NB.GN: Having ALREADY lost in the NZ High Court, AND also the NZ Court of Appeal)
Held - The evidence as to the nature of the scripts and what their text contained was exiguous in the extreme, and accordingly, in the absence of precise evidence as to what the scripts contained the Court of Appeal had been correct to conclude that they were not the subject of copyright. Furthermore, it was stretching the use of the word 'format' to use it to describe the features of a television series such as a talent, quiz or game show which was presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories.
The protection which copyright (law) gave
created a monopoly and there had to be certainty
in the subject matter of that monopoly in order to avoid
injustice to the rest of the world, but the subject matter of
the copyright claimed by the appellant for the 'dramatic format'
of his television show was conspicuously lacking in certainty.
Moreover, a dramatic work had to have sufficient unity to be capable
of performance, and the features claimed as constituting the 'format'
of a television show, being unrelated to each other except as
accessories to be used in the presentation of some other dramatic
or musical performance,~lacked that essential characteristic.
The appeal would therefore be dismissed. (see p 1058 d
to h, post). ~
Dictum of Farwell LJ in Tate v Fullbrook  I KB 821 at 832~-833 applied.
For what constitutes a dramatic or musical performance, see 9 Halsbury's Laws (4th edn)
paras 8 34, 840, and for cases on the subject, see ~ 3 Digest (Reissue) 66-67, 74-7', 63 664', 670-682,
Case referred to in judgment a Tate v Fullbrook: I KB821, CA.
Hugh Hughes Green appealed by leave of the Court of Appeal of New Zealand (Cooke, Hardie Boys and Wylie JJ) given on 10th May 1989 from the decision of that court (~Somers and Casey JJ, Gallen~J dissenting) on 22nd September 1988 affirming the decision of the High Court of New~Zealand (Ongley J) on 23 December 1983 dismissing his action against the respondent, Broadcasting Corp of New Zealand, claiming damages for passing off and infringement of copyright in a television show entitled 'Opportunity Knocks' of which the appellant was the author, presenter and compere in England between 1956 and 1978. The facts are set our in the judgment of the Board.
Hugh Laddie QC and Christopher Finlayson (of the New Zealand Bar) for the appellant. David Baragwanath QC and J B Thomson (both of the New Zealand Bar) for the respondent.
18 July. The following judgment of the Board was delivered.
LORD BRIDGE OF HARWICH. The appellant is a well-known personality in the entertainment world. Between 1956 and 1978 he was the author, presenter and compere of a television show entitled 'Opportunity Knocks' in England. The show was in essence a talent contest. In 1975, and 1978 the respondent broadcast a similar television show under the same title in New Zealand. The appellant commenced proceedings in the High Court of New Zealand claiming damages for passing off and infringement of copyright. His action was dismissed by Ongley J on 23 December 1983. The judgment was affirmed by the Court of Appeal (Somers, Casey and Gallen JJ) on 22 September 1988. The appellant now appeals to Her Majesty in Council by leave of the Court of Appeal. The only issue arising in the appeal relates to the claim of copyright. The Court of Appeal decided against the appellant (Hughie Green) by a majority, [;Allen J dissenting.]
The copyright alleged to have been infringed was claimed to subsist in the scripts and dramatic format' of 'Opportunity Knocks' as broadcast in England. The.appellant's primary difficulty arises from the circumstance that no script was ever produced in evidence.
Ongley J concluded: 'There was really no evidence that any part of the show was reduced to a written text which could properly be called a script . . .'
He later added:
'No writing has been produced in evidence in this action in which, in my view, copyright could subsist.'
The Court of Appeal differed from the trial judge to the extent that it accepted that the evidence established the existence of scripts. But the evidence as to the nature of the scripts and what their text contained was exiguous in the extreme. It is to be found in two short passages from the evidence given by the appellant himself. He said in the course of examination-in-chief:
'In the year 1956 1 wrote the scripts of"Opportunity Knocks" shows, such as they were, because we would have what we would call the introductions, our stock phrases like "For So-and-So, Opportunity Knocks", phrases such as "This is your show, folks, and I do mean you". The other part of the writing dealt with interviews with the people and one could nor really call it writing because you were really only finding our what the artistes wanted to talk about.'
: He (Hughie Green) also said in cross-examination:
'The script of"Opportunity Knocks" has continuously been the same for the catch-phrases, the interviews each week which the artistes had differed, the script for the past 17 years and long before 1975 contained particularly the end of the show beginning a with the words "make your mind up time" using the 'clapometer' and bringing back the five people.'
On the basis of this evidence Somers J concluded:
'. . . the scripts as they are inferred to be from the description
given in evidence did not themselves do more than express a general
idea or concept for a talent quest - and hence were not the subject
of copyright. In the absence of precise evidence as to what the
scripts contained, their Lordships are quite unable to dissent
from this view.
` The alternative formulation of the appellant's claim relies on the 'dramatic format' of 'Opportunity Knocks', by which their Lordships understand is meant those characteristic features of the show which were repeated in each performance. These features were, in addition to the rule, the use of the catch phrases 'for [name of competitor] opportunity knocks' , 'This is your show folks, and I do mean you'-- and 'make up your mind time', the use of a device called a 'clapometer' to measure audience reaction to competitors' performances and the use of sponsors to introduce competitors. It was this formulation which found favour with Galleh J '
"It is stretching the original use of the word 'format' a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, which repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were 'structure' or 'package'. This difficulty in finding an appropriate term to describe the nature of the 'work' in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of chief performers in the talent show, the questions and answers in the quiz show etc) and identified as an original dramatic work'.
No case was cited to their Lordships in which copyright of the kind claimed had been established.
The protection which copyright gives creates
a monopoly and there must be certainty in the subject-matter of
such monopoly in order to avoid injustice to rest of the world':
see Tate v Fullbrook  I KB 821 per Farwell LJ a 832-833.
The subject matter of the copyright claimed for the 'dramatic
format 'of' Opportunity Knocks is conspicuously lacking in certainty.
Moreover, it seems to their Lordships that a dramatic-work must
have sufficient unity to be capable of performance and that the
features claimed as constituting the 'format' of a television
show, being unrelated to each other - except as accessories to
be used in the presentation of some other dramatic or musical
performance, lack that essential characteristic.
For these reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed.
Solicitors: .Alan Taylor ~ Co (for the appellant): Marfarlanes (for the respondent).
Original Copyright - Mary Rose Plummer Barrister. ~
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