With decision no. 3833/2023 of 8 March 2023, the Court of Rome expressed itself again on the protection of a tv format, recalling the most recent jurisprudential findings and providing a new interpretation of the importance of the deposit at SIAE to protect copyright.
The case
An employee of the publishing group Gambero Rosso, hired as Art Director, claimed to have created the format of several tv programs broadcasted by Gambero Rosso and asked the Court to ascertain his copyright, moral and economic rights, on the programs under exam.
Gambero Rosso defended itself by pointing out that the Art Director was hired by the company as middle manager and, therefore, his work was absorbed by the tasks carried out in the company context of Gambero Rosso, that is of a multimedia channel which produces programs, schedules and works with food and wine characteristics. In this context, the defendant argued that the possible copyright claimed by the actor were attributable to the producer, pursuant to art. 45 of the Italian Copyright Law and that, however, were referable to a teamwork made by the actor together with other employees of the company.
Tv Format and Copyright
Before issuing the decision, the court recalled that the Italian system lacks of a normative definition of tv format and because of this it is necessary to “consider the notion resulting from the “bollettino Ufficiale” no. 66 of 1994 of the SIAE, according to which the work, for the purposes of the above-mentioned protection, must present, as qualifying elements, sequential articles and themes, such as a title, a plot or a core narrative structure, a stage set and fixed characters, as to create a reproducible explicative structure of the program”.
Consistent with the previous decisions of the jurisprudence, the Court affirms that “the figure of the format of a Tv program (…) requires a programmatic structure with a minimum level of creative elaboration, which postulates the first identification of at least the structural elements of said issue, and therefore the setting in time and space, of the main characters, of their behavior and common narrative thread, with the further consequence that in absence of such elements it is not possible to call for the protection related to the work of ingenuity, because it is an ideation still so vague and generic to be comparable to an empty box, lacking any market usability and deficient of the requirements of creativity and individuality essential to the configurability of the work of ingenuity”.
To summarize, the tv format is protectable as a copyright protected work when it presents a program outline, a plot delineated in its essential traits, generally destined to a serial tv production, as resulting from a brief description. On the contrary, an absolute generic and brief description of the contents of the program, without a concrete prevision of its development, cannot be protected as a work of ingenuity.
In the case under exam, the court considered that the programs on which the Art director had worked were lacking of all the necessary requirements to ask for the copyright protection, for they did not have a valid structure as format and were simple footages of characters liked by the audience while cooking traditional recipes. Moreover, in a preliminary phase it had emerged that for the programs at issue there was a whole team who took collectively care of the authorship part, therefore the creation of the program was not attributable to the only Art director.
Therefore, all requests of the actor were rejected.
The decision of the Court and relevance of the deposit at SIAE
Among the motivations in favor of the decision of rejection, the Court gives particular relevance to the absence of a preventive registration of the format at SIAE, as it states “it is found moreover, and such observation appears diriment, that there is not even knowledge of the deposit of the format at SIAE, which represents the constitutive moment of the copyright, therefore the request results, also under the profile of the proof of protectable rights, besides of the authorship, groundless”.
In conclusion, according to the Court, the deposit at SIAE with respects to the Tv format seems to have a constitutive effectiveness in addition to a probatory relevance.
Ilaria Feriti