Seven Network (Operations) Limited v Endemol Australia Pty Limited [2015] FCA 800 [1]

The Seven Network has lost its bid for an interlocutory injunction to stop the Nine Network broadcasting its new reality television cooking program, The Hotplate.

The Seven Network alleged that Endemol (The Hotplate producer) and the Nine Network had copied key elements of its successful reality television cooking show, My Kitchen Rules and argued that by broadcasting episodes of The Hotplate, the Nine Network infringes copyright in the various literary and dramatic works that make up My Kitchen Rules. While the matter was largely procedural in that the court was asked by the Seven Network to grant an interlocutory injunction, the court considered some preliminary copyright issues that are surely to be expanded upon when the matter reaches trial.

The Seven Network contended that copyright subsists in My Kitchen Rules as a series of original literary works comprising various documents: Format Pitch and Format Presentation, Production Bible, Interview Overview and the Instant Restaurant Producers Shooting Guide in Confidential. Further, the Seven Network alleged infringement in individual episodes of My Kitchen Rules as dramatic works, comprising “the combination and series of incidents (including situations, events and scenes), plot, images and sounds reduced to material form”. While the court foresaw a difficulty in the Seven Network framing its case this way, the court left it open to Seven to explain precisely how it puts its case. [2]

As the case was at an interlocutory stage, the Seven Network needed to make a prima facie case of infringement. As the court noted, the strength of this prima facie case may be an important consideration in determining whether the balance of convenience favours granting or withholding interlocutory relief. [3]

The court heard evidence from the Seven Network outlining the key elements in a My Kitchen Rules season as well as evidence from Endemol that set out some of the differences between My Kitchen Rules and The Hotplate. The court observed one obvious difference between the shows is that the contestants in My Kitchen Rules are amateur chefs, while the Hotplate chefs are professionals, creating an “arguably different” dramatic effect. [4] Nevertheless, the format of the two programs seemed to the court to be “very similar”. The court concluded that the Seven Network has a “reasonably arguable” case, but did not accept that it had a strong prima facie case. [5] This finding was important in the court’s consideration of the balance of convenience in granting the application, which fell in favour of the Nine Network and the application dismissed. A key part of this consideration was that if an injunction was granted to cease further broadcasting, it would involve unquantifiable and imprecise damage to the Nine Network and a risk of doing an injustice, as it had already started broadcasting The Hotplate.

Comment

This case is one to watch. Australian screens are graced with a profusion of reality television programs covering not just cooking competitions but also home building and renovation, singing, dancing and special living arrangements. After a while, they all start to seem the same. If the Seven Network’s action is ultimately successful, television content producers might need to be more careful. The case should throw up some interesting copyright issues such the scope of protection for television formats and the idea/expression dichotomy, i.e. to what extent an idea for a television program must be articulated to receive copyright protection.

 

[1] http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0800

[2] at 15.

[3] at 34.

[4] at 28-30.

[5] at 34.