Dressing down for Glow Up copyright claim

The court noted that TV formats can in principle enjoy protection as a dramatic work, as long as: (a) they have clearly identified features that distinguish the programme from others of a similar type; and (b) those features are connected in a coherent framework that can be repeatedly applied to enable the programme to be reproduced in a recognisable form. The case followed a familiar format; however, the court considered the treatment to be relatively generic and found no copying of protectable elements. Several claims on other bases were also dismissed as without foundation.

Background

The claimant, Ms Gladness Jukic, alleged that her idea for a reality TV series about a series of make-up and beauty-styling contests had been copied without permission or payment by the BBC and Wall to Wall Media Limited, a production company.

Ms Jukic said that she had sent a treatment to BBC3 in May 2018 for her idea for a make-up-themed TV show, which she claimed was subsequently copied by the BBC and Wall to Wall when they produced the Glow Up series.

The foundational premise of Ms Jukic’s treatment, which took the form of a PowerPoint-style presentation, was that competing teams of artists would be given minimal time to complete a series of makeovers. In Ms Jukic’s proposed show, each team would consist of a make-up artist, a hairstylist and a fashion stylist, with each artist having ten minutes to execute a certain theme, combining to create a unified “look”, which would then be reviewed by a panel of judges.

At face value, there were superficial similarities between the claimant’s treatment and the Glow Up series, including the focus on beauty-themed challenges and the competitive element of the formats, which were examined in some detail by the court.

Ms Jukic also claimed that, since she had been “robbed” of her format, an employee of the BBC had hacked her computer to delete the evidence of the BBC’s infringement. She also accused the BBC and Wall to Wall of conduct amounting to harassment through challenging the validity of her alleged earlier “glowup” trade mark, and for failing to pay her for her work.

Ruling on non-copyright claims

Mr Justice Thompsell summarily struck out Ms Jukic’s claim for trade-mark infringement, and for the claims of computer misuse and harassment. The claimant had failed to show any recognisable basis for any of those claims, given that:

• she did not have a valid earlier trade mark on which to base her trade-mark claim;
• she could not bring a civil claim for computer misuse, which is a criminal act under the Computer Misuse Act 1990; and
• she did not identify any legally recognised cause of action for harassment under the Protection from Harassment Act 1997.

Copyright decision

With all other claims struck out, the judge turned to Ms Jukic’s claim that the intellectual property in her treatment had been infringed by the BBC and Wall to Wall. In focussing on the copyright aspects, Thompsell J provided some assistance to Ms Jukic in formulating her claim – in a dynamic that will be familiar to large firms that have faced claims brought by litigants in person.  

The judge had some sympathy with the BBC and Wall to Wall Media, noting that Ms Jukic’s claim was “extremely unclear”, and that she had “not particularised her intellectual property claim in any coherent manner”. Ms Jukic had simply claimed that the BBC had aired as well as produced her show without her consent.  

Thompsell J did not, however, take a dogmatic approach in assessing Ms Jukic’s failure to label or particularise her claims appropriately, deciding that her claim in relation to “breach of her intellectual property” only made sense when viewed as a claim for breach of copyright under the Copyright, Designs and Patents Act 1988.

Copying

In making his decision, the judge revisited some of the fundamental elements of a copyright claim, especially in their potential application to TV formats.

The judge noted that TV formats are not specifically protected under the Copyright, Designs and Patents Act 1988 as a separate legal right, although they can “in principle, enjoy protection as a dramatic work”. In this respect, the judge followed Banner v Endemol, ^[2] in which Snowden J held that a TV format could benefit from copyright protection, as long as: (a) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (b) those distinguishing features are connected with each other in a coherent framework that can be repeatedly applied so as to enable the show to be reproduced in a recognisable form.

The judge examined the elements of Ms Jukic’s format in detail to decide the fundamental question of whether Ms Jukic’s treatment was capable of being afforded copyright protection, as well as deciding the extent of the copying, if any, by the BBC and Wall to Wall.

In making his analysis, the judge noted that many elements of Ms Jukic’s treatment were simply too commonplace to be protected by copyright. Ms Jukic’s treatment consisted of the following elements: (a) a contest between groups of contestants who were competing to create looks and styles; (b) a panel of judges who would assess the looks and styles created by the groups of competitors; (c) different themes for each episode that would be interpreted by the groups of competitors; (d) a focus on beauty makeovers; and (e) giving contestants limited time to finish each of their looks and styles. The judge considered that many of those elements were simply too “high-level” to benefit from copyright protection and were common features of many similar TV programmes such as The Great British Bake Off, The Great British Sewing Bee, Hair and Interior Design Masters.  

In dismissing the idea that copyright could protect the idea of a panel of judges assessing the different looks, the judge applied the leading principles in Meakin,^[3] in which a claim for copyright infringement was dismissed on the grounds that the alleged similarities were repetitive, recycled, commonplace and at a high level of abstraction.

The judge also reviewed the similarities and differences between the shows holistically. Even though the shows both featured makeover challenges under time constraints, the judge found that the differences were far greater than the similarities. In particular, the judge noted that the BBC’s Glow Up placed far less emphasis on the strictness of the time limit and gave more precedence to the back story of the individual make-up artists as part of a three-act structure. In Ms Jukic’s format, there was a greater element of teamwork, with stylists in different roles working together to create a new makeover for the model, whereas the BBC’s Glow Up only focussed on single make-up artists, without any element of teamwork.

On this basis, the judge gave summary judgment against Ms Jukic on her copyright claim.

Access

A further issue usually considered by the court in a case of alleged reproduction of a copyright work is the issue of access to the claimant’s work, which is a question of fact. Initially, the burden of proof lies with the claimant to prove, to the ordinary civil standard, that: (a) the defendant had the opportunity to copy; and (ii) there is sufficient similarity between the claimant’s work and the defendant’s work to raise a prima facie inference of copying.^[4] The judge cited Baigent, in which it was held that, unless there is evidence from which access could be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential to prove any copying.

The judge did not, however, fully investigate the issue of access in this case, as he had already found that there was no copying, and as such the claim fell at the first hurdle.

Besides, the evidence put forward by the claimant appeared to be unreliable:

• Ms Jukic had provided screenshots of her communications with a BBC executive on LinkedIn, but those screenshots were of debatable utility.
• She had also written what she claimed was a contemporaneous note to herself, her mother and two family friends, which said that she was writing a show that she planned to pitch to the BBC. Yet the judge noted that the letter carried two dates, and so it remained in question as to when the letter was actually produced. It could not be accepted as a contemporaneous note without accompanying metadata or other external evidence that it was written in January 2018.

Comment

Although there remains no case in which the subsistence of copyright in a given TV format has been conclusively demonstrated, this case again highlights the willingness of the English courts to engage in substantive discussions about the possibilities of proving subsistence in TV formats. This aligns with the commercial reality of the TV industry, in which production companies often pay format creators for the right to develop and exploit TV formats.  

Even if she put a brave face on it, perhaps Ms Jukic’s beauty treatment was not the ideal test case, and the judge remained unimpressed by the claimant, noting her discourtesy in failing to show up to the High Court to defend her claim. While courts often take great pains to accommodate litigants in person, the judge remained entirely unconvinced by any of Ms Jukic’s claims. Accordingly, laying it on thick, he imposed a civil restraint order against her, restricting her from making any further applications in the proceedings without first obtaining the court’s permission.

The judge’s detailed analysis of each of the individual features of Ms Jukic’s treatment should inform the approach of TV format creators in the way that they document the detailed elements of their formats. Creators should also be aware that generic, commonplace features, such as the mere presence of a panel of judges, or the element of time pressure while completing a challenge, will not – at least, to the extent of a generic trope – benefit from copyright protection, whereas a much more specific expression of such ideas might, if together forming a coherent, replicable framework.

Further, in pleading format rights in court, owners should take care to particularise their format in detail, while emphasising the format’s unique elements, which cannot be purely cosmetic.

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Article written for Entertainment Law Review.