MIPCOM: Copyright Disputes Cast Shadow Over Reality TV Deals

The Voice Season 11 - Battles 2 - Still - H - 2016

Networks worldwide are looking for the next big hit, but wranglings over 'The Voice' and other formats make the reality TV business more uncertain.

Despite the end of American Idol this summer after a 15-year, record-setting run, reports of the death of reality TV are greatly exaggerated. Non-fiction shows, from NBC's Little Big Shots to the U.K.'s pastry-based hit The Great British Bake Off, to countless international iterations of singing competition formats Got Talent, The X Factor and The Voice, are testament to the genre's staying power.

The next big thing in reality TV could be on display in France next week, as TV producers and networks from around the world crowd into the overpriced hotel rooms and jam the narrow streets of Cannes for international television market MIPCOM, which runs Oct. 17-20.

Talpa Media, the Dutch producer of international spinning chairs hit The Voice — the last big global format to emerge in the past 10 years — is hoping it has the next big thing on its hands with 5 Gold Rings, a game show, in which contestants answer questions by placing gold rings on an LED playing floor, with viewers at home joining in via a mini version of the game on their phones, is looking to be the first truly interactive reality TV show, something networks around the world have been looking for.

5 Gold Rings, which Britain's ITV and SBS6 in the Netherlands have commissioned and which will go out next year, is the first show Talpa developed together with Britain's ITV Studios since parent company ITV bought Talpa in 2015 in a deal valued at up to $1.17 billion. Around $600 million of that payout, however, is contingent on Talpa continuing to deliver “significant profit growth” over an eight-year period, meaning the Dutch group could really use another hit.

But casting a shadow over the booming business of reality TV is the murky issue of copyright. While a reality hit like The Voice can generate billions in worldwide licensing revenue for Talpa as rights holder, international copyright legislation gives little protection against someone else, particularly from another country, stealing an idea and passing it off as their own.

Talpa itself is at the center of multiple legal disputes related to The Voice and other reality formats, both as the plaintiff and as the accused copyright offender.

The Dutch group claims Star China, which produced the hugely successful The Voice of China for four seasons, violated the terms of their contract. Talpa canceled the license for The Voice with Star China in January and granted it instead to another Chinese company, Tangde.

Star China, however, went ahead with a new singing competition series, called Sing! China, that bears some striking similarities to The Voice. Instead of judges sitting on spinning chairs, which whirl around when they chose a singer they wish to coach, the magic moment of The Voice format, in Sing! China, judges race each other to the stage in chariots to secure a singer. The show, which launched in China this summer, was a ratings hit for the Zhejiang Satellite TV network, securing a 30 percent-plus share of the national audience, more than five times China's number two show for the same time slot. Star China will be selling the Sing! China format to buyers at MIPCOM.

Neither Talpa nor Star China would comment on the case, but a Talpa representative said the company was “closely reviewing” Sing! China and “will not hesitate to take appropriate measures to defend its IP.”

Talpa won the first round of its copyright battle with Star China when, in August, the Beijing IP court, in its first preliminary injunction since its establishment in December 2014, found that Talpa, and by extension its new Chinese partner Tangde, were the sole owners of the brand The Voice of China.

That's a decision that Roy Barry would dispute. An independent producer based in Ireland, Barry claims to be the original creator of The Voice format and has been fighting for years to prove his case in court. In 2008, Barry registered an idea with the Writers Guild of America West and the U.S. Copyright Office for a singing talent show entitled Voice of America featuring blind auditions, in which judges cannot see the contestants. He also posted the idea on the web site TV Writers’ Vault, which allows television industry professionals to scout for new ideas, on the condition that they keep the material confidential. Barry claims his pitch materials were leaked to Dutch singer Roel Van Velsen, the man Talpa credits, alongside company founder John de Mol, as the creator of The Voice. Talpa launched The Voice of Holland, its first version of the format, on Dutch TV in 2010.

Barry filed for copyright infringement in the U.S. against Talpa's American subsidiary, which initially produced The Voice for NBC together with Mark Burnett Productions and Warner Horizon Television. In February, a jury in Los Angeles will rule on Barry's case.

“They stole my format, plain and simple,” Barry told The Hollywood Reporter. “This is why there hasn't been a big reality TV hit since The Voice: independent producers don't want to share their ideas with production companies like Talpa for fear their will just take them and not give any credit to the real creators.”

Going into Mipcom, Barry told THR he will be offering any network his format — a blind audition singing show — for free. And he is challenging Talpa to sue him. “Instead of having to pay a million dollars for Talpa's The Voice, you can have the original for nothing,” he says, asking any interested networks to contact him directly via his web site.

In response to questions for THR, a Talpa spokesman repeated the company's insistence that Barry's claim was “completely untrue and baseless, and we will vigorously defend our format.” ITV repeated Talpa's claims with regards to The Voice, which as of next year will in Britain move from the BBC to ITV. 

Talpa, however, declined to comment on another copyright challenge regarding its format The Next Boy/Girl Band, a spin on the singing competition show in which record labels compete to cast the next big group, initially based on “deaf auditions” in which talents are picked based on their look, before they even get a chance to sing.

Talpa launched The Next Boy/Girl Band in the Netherlands earlier this year and is pushing the format as one of its big new shows at MIPCOM.

But Antony Haynes, a U.K. producer, has similar claims that Talpa stole the format, by combining elements from two talent show formats he pitched the company — Final Five: Search for the Next Boy/Girl Band and On the Spot. Haynes' allegations are backed up by email correspondence, seen by THR, going back several years between himself and Talpa executives, discussing the formats, which feature numerous elements common to The Next Boy/Girl Band, including the “deaf auditions” and the idea of competing record labels.

“This is Talpa's business model: they don't create, they steal,” Haynes told THR. “It's systematic and deliberate.”

Similar to Barry, Haynes will be offering his format Final Five: Search for the Next Boy/Girl Band to international networks at MIPCOM for a symbolic $1 licensing fee. Haynes has also launched a Go Fund Me campaign to raise money for planned legal action against Talpa, John de Mol and Talpa parent company ITV alleging breach of confidence and other charges.

“At this point, Talpa has no comment regarding this matter,” a Talpa spokesman said when asked about Haynes' allegations and his plans to offer Final Five to buyers in Cannes.

Whatever the basis of Haynes' and Barry's claims against Talpa, or that of Talpa's against Star China, their current legal wrangling is unlikely to settle the issue of copyright in the field.

Protecting a reality TV format is notoriously difficult, not least because copyright law is inconsistent from country to country. Previous cases in the U.K., for example, have tended to rule that TV formats, particularly game show formats, cannot be protected by copyright. U.K.-based production company Castaway, which made Survivor, the original reality TV show, sued Dutch group Endemol and its then-CEO John de Mol, in late 1999, claiming they stole the idea of Survivor for their Big Brother format.

The Dutch Supreme Court, in a landmark decision in 2004, ruled that while TV formats could be protected and that there were “12 identifiable elements” from Survivor present in Big Brother, there was “no substantial similarity” between the two shows.

“Successful TV formats may be incredibly valuable products, yet the status of TV formats under copyright law is not completely clear,” Dr. Eleonora Rosati, a lecturer in IP law at the University of Southampton and copyright consultant, told THR. She noted that copyright lawsuits involving formats are often filed under the broader heading of “unfair competition,” “misappropriation” or "breach of confidence” since those charges can often be easier to prove under existing confidentiality and contract law.

Then there are problems with national jurisdiction. A successful copyright suit in the U.S., for example, means little if courts in the Netherlands, U.K. or China refuse to recognize the ruling.

Here Rosati sees some signs of progress, citing a 2011 copyright case before the U.K. Supreme Court that referred to a pre-existing U.S. judgment on the same matter. “The current general trend in legal and judicial practice worldwide is to favor the international recognition and enforcement of copyright,” she noted.

Reality TV veteran Dick de Rijk, however, is more pragmatic. The creator of the global hit show Deal or No Deal said everyone in the business knows “there’s often a thin line between a rip-off and a more or less original format." Added de Rijk: “That’s the TV business. … You can only protect your formats with highly original (game) structures or other components … or by being the first with an ultra fast distribution capacity.”