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Out of the Hotplate and into the Federal Court

On 6 August 2015, the Federal Court handed down its Judgment in respect of Seven Networks’ application for an interlocutory injunction to restrain the broadcast of Channel 9’s “Hotplate” reality cooking show in Seven Networks (Operations) Ltd v Endemol Australia Pty Ltd [2015] FCA 800 (“Endemol”)

Channel 7’s claim was that the popular Hotplate show reproduced key elements of each series of Channel 7’s My Kitchen Rules (“MKR”) or a combination of the key elements of the show that was sufficient to constitute a substantial part of one or more of the MKR literary works.

In essence, Channel 7 was claiming copyright in the scenario for a television program as a dramatic work.

In order to establish copyright infringement, two elements must be established:

  1. There must be a sufficient degree of objective similarity between the copyright work and the alleged infringement; and
  2. There must be a causal connection between the copyright work and the alleged infringement.

It is also a defence if a respondent can show that it expended such mental labour upon the taken material and subjected to such revision and alterations that it produces a new original result.

Whilst this appears to be a claim for copyright of an idea (which cannot be protected by copyrighted), there is authority that the choice and arrangement of plots, characters and situations may create their own dramatic effect independent of the language used to convey the finished product.

Channel 7’s claims are similar to those a New Zealand television production company made against Nine in relation to The Block in Nine Films and Television Pty Ltd v Ninox Television Limited [2005] FCA 1404. In that case, Ninox claimed copyright in the “Dream Home” format (a successful New Zealand renovation show) as a dramatic work and alleged that it had been infringed by Nine’s production and airing of The Block.

In Endemol, Channel 9 followed the approach it took in Ninox and sought to distinguish its show by highlighting the differences between the shows, in this case on the basis that Hotplate involved professionals and professional kitchens.

The Judge in Endemol reasoned that Nine was advancing an argument that whilst MKR is a successful television show, it is nonetheless an unimaginative collection of unoriginal ideas and situations found in earlier reality television programs.

Ultimately the Judge found that Seven may have an arguable case but did not have a sufficiently strong case to justify an interlocutory injunction.

If the Judge in Hotplate follows the reasoning in Ninox, he will need to consider the whole context in which the claimed similarities and differences arise and in which the characters and plots develop in order to finally determine whether there was infringement in this case at trial.

The differences between Hotplate and MKR may make it difficult for Channel 7 to succeed in its claim.

Cowell Clarke has experience in dealing with copyright infringement and infringement of other types of intellectual property. We can advise as to the prospect of obtaining injunctive relief to protect intellectual property rights. Please contact us if you want to discuss this type of matter or any other copyright related matter.

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