TV game shows play an important role in the Vietnamese entertainment industry, as in the global market. Many well-known game shows from other countries have been franchised or licensed for broadcast in Vietnam, including ‘Who Wants to Be a Millionaire?’, ‘Vietnam’s Got Talent’, and ‘The Voice’, drawing large audiences and generating billions of VND from commercialised activities.
Other popular shows have been developed domestically – some wholly original, but many bearing a heavy resemblance to existing shows from other markets, with similar gameplay, similar sets, and even similar names.
This raises an interesting question from the intellectual property perspective as to whether owners or creators of game shows can charge these copycat shows with infringement. In other words, are format rights recognised as a copyright and can a game show be protected under intellectual property law?
Globally, this is a question without a clear and explicit answer. The Format Recognition and Protection Association (FRAPA), a trade association formed in 2000 to advocate recognition of television formats as intellectual property, strongly believes that format rights are protectable and has been working to convince courts and lawmakers around the world to define these rights under law. However, recognition of format rights is still very limited, and is often determined on a case-by-case basis.
A common argument from legal experts is that because the format of a game show is only composed of ideas, which are not protected by law, it cannot be the subject of copyright (for reference, Green v Broadcasting Corporation of New Zealand in 1989). However, others argue that if the format of a game show is an intellectual creation and contains key elements which have unique originality, and it is not just a combination of general and commonplace elements, it can be protected under copyright law (for reference, Meakin v BBC [2010] EWHC 2065).
Format rights in Vietnam
Vietnam’s IP Law does not stipulate any protection of formats and there are no provisions on infringement and enforcement of format rights. In other words, format rights have not yet been recognised in Vietnam. However, it is believed that a game show can still be separately protected under the IP Law via copyright for (i) literary works for the scripts; and (ii) dramatic works for the ‘expression’ of the game show on stage (including the concept, structure, studio and lighting design, rules, etc.).
The IP Law does not require copyright owners/authors to register their works (in this context, the literary work or the dramatic work) but it is a recommended and easy way to prove the ownership of a copyrighted work in order to prevent potential infringement.
Assessment of copyright infringement between game shows
Although there is a way to partially protect the copyright of a game show, when it comes to a claim of copyright infringement, it is far more complicated, especially when the global entertainment industry has created and televised hundreds of game shows with many features and elements in common.
To establish copyright infringement, including for literary works and dramatic works, there are at least three criteria to consider: originality, the similarity of the disputed works, and the willfulness of the alleged infringer.
Originality can be difficult to prove. Many game shows fall into recognisable categories with similar ideas and structures, like quiz shows or talent contests. For example, most singing competitions, like the ‘Idol’ and ‘The Voice’ franchises, have contestants demonstrate their talents on stage, after which the panelists/judges give comments and scores, and contestants are eliminated from round to round until a championship or grand finale finds a winner of the show. When a game show’s format has these very common elements, it is hard to claim they give the show originality. And even though each game show is an interactive event where the participants have the freedom to act and comment beyond any prewritten script, it is doubtful that such acting and reacting can make the whole game show original.
Discerning the similarities between disputed game shows is also important when considering whether an allegedly infringing show is a copy or a derivative work of the earlier show. To this extent, it is necessary to identify whether the similar elements are essential to the whole show or just coincidental. For example, both ‘Who Wants to Be a Millionaire?’ and ‘Rồng Vàng’ (a popular game show in Vietnam from 2003 to 2007, licensed from a Thai show) have similar elements and structures wherein a single contestant tackles a series of multiple-choice, general-knowledge questions to win a large cash prize, and can confer with family and friends to find the answer.
A viewer of both shows would certainly recognise a resemblance and might confuse one for the other. However, to our knowledge, no infringement suit was ever pursued, likely due to the originality issue. The elements that were most similar were common or even inherent to the quiz show genre, while the elements that were arguably the most distinctive – such as the amount of the cash prize, a key element of the ‘Millionaire’ brand – were different.
Finally, the claimant must prove that the infringer willfully copied the copyrighted work in question. It is possible to prove this indirectly by showing that the original work was created, published, or registered before the copycat, and that the infringer should have known that its work could damage the claimant’s rights.
Conclusion
While Vietnam’s IP Law does not expressively provide copyright protection for game shows, it is clear that a game show can indirectly be protected through its literary works and/or dramatic works. However, it is not easy to enforce the copyright of a game show in practice because in the entertainment industry, there is a blurred line between copyright infringement and the similarity of ideas among game shows. Thus, one must carefully evaluate and assess the show’s originality and the similarity between the disputed game shows, and the willfulness of the infringer. Only when all the criteria are satisfied can we say that there is a copyright infringement of the game show.
Trung Nguyen
IP director of HCMC Branch, T&G Law Firm LLC (TGVN), local associate firm of Tilleke & Gibbins
Phuong Thuy Nguyen
Associate, T&G Law Firm LLC (TGVN), local associate firm of Tilleke & Gibbins
