Sandra Richmond is a partner in the Toronto law firm of McMillan Binch LLP and a member of the firm’s KNOWlaw Group. This article was prepared with the assistance of Paul Jachymek.

They’re everywhere – and they look so easy to do.

Reality TV shows are so common, in fact, that next year there’ll be a Gemini for the Best Reality Based Entertainment Program or Series, defined as ‘productions that are character-based, story-driven, non-fiction that include elements of competition, constructed situations and/or observational documentary style segments’.

But if you’re thinking these low-budget, high-ratings, ‘just-aim-the-camera-and-shoot-what’s-happening’ shows must be easier to do than higher budget, scripted and contract-laden dramatic programming, it may be time for a reality check.

Where’d you get that idea?

There are all kinds of ideas for new reality TV shows. Or are there?

CBS, which broadcasts Survivor, recently lost its attempt to get a court order to stop ABC from airing its show I’m a Celebrity… Get Me Out of Here in the U.S. – a show the media referred to as ‘Celebrity Survivor’ and a ‘Survivor-hybrid.’

CBS claimed infringement on the basis that both shows featured a group of contestants stranded in a remote location, like a jungle, who had to perform various tasks for rewards before voting one another off the show, and that the shows contained common elements such as frequent aerial shots, close-ups of wildlife and voting-off ceremonies.

The court refused the order, saying that the ABC program was sufficiently different due in part to its lighter tone. The judge added that program-making was ‘a continual evolutionary process involving borrowing frequently from what has gone before’ and that both shows had borrowed heavily from earlier shows.

(The U.S. result may make Castaway Productions, which owns the rights to Survivor in the U.K., think twice about suing ITV’s Granada over the U.K. version of I’m a Celebrity…Get Me Out of Here. And make Granada reconsider its plans to counter-sue over Castaway’s plans to make Celebrity Survivor.)

Generally, the courts in the U.S. and the U.K. have not given a lot of protection to format rights, particularly game show formats.

For example, when the producers of Censored Bloopers tried unsuccessfully to prevent the producers of Life’s Most Embarrassing Moments from using the show’s outtake format, the courts noted there are a limited number of ways to present these types of programs and to protect against anything less than direct or identical copying would give the first producer a monopoly in that type of program.

Canadian courts have taken the same approach since a 1972 case in which the court rejected a claim for infringement of a bowling show format because the idea was too commonplace to merit copyright protection.

And, when the producer of Star Chart claimed that the CBC show Good Rockin’ Tonite had infringed its rights, the court said that although both used the same ‘video jockey’ concept and some of the same elements (such as parts of the set), they were substantially dissimilar programs.

So even if you come up with the idea for the next smash reality TV series, you may not be able to protect it against imitators for long.

Format rights

On the other hand, if it’s a big enough hit, you may be able to license the name and format to producers in other territories who want to create customized domestic versions of your show.

Producers paying to license format rights in existing shows are usually looking to reduce financial risk by building on a known success (although some shows have not always travelled well), and to avoid potential lawsuits.

If, for example, you want to use the title and/or logo of an existing program, you will need to enter into a licence agreement for them. Owners of popular reality TV programs often obtain trademark protection for their titles and logos – precisely so they can stop others from using these valuable assets without permission.

Even with a different title, if the format or concept is too close to that of an existing show, you may want to sign a format licensing agreement to prevent a lawsuit.

Format licence agreements

Format agreements are often structured as an option so that the licensee producer can raise production financing before being locked into a long term deal. But once the deal goes ahead, as well as a one-time fee, the licensee will pay continuing royalties on episodes produced and a percentage of revenues, particularly if he or she is allowed to exploit related rights, such as video and merchandising spin-off rights. Licensors sometimes share in sponsorship revenues as well.

Other provisions in format agreements include those dealing with:

* what elements of the existing version (e.g. music, sets, slogans) are included in the licence – and whether the licence extends to new elements created in future seasons

* who owns rights in new elements created for the new version during the licence and upon termination or expiry of the licence

* the term of the licence and any extension periods to permit reruns of the program

* the minimum number of episodes that must be produced for the licence to continue

* the licensor’s approval rights

* the protection of intellectual property rights (e.g. trademark licences, the right to bring actions against third-party infringers)

* the licensor’s credits

* the licensee’s obligation to engage production personnel provided by the licensor to ensure a continuity of production techniques and/or creative qualities

Financing realities

The advantage of licensing the rights to produce your own version of an existing – and successful – show is that it may make it easier to sell to a broadcaster. Broadcaster support is crucial because many reality TV shows aren’t eligible for tax credits and incentives like Telefilm money or the Canadian Television Fund’s Licence Fee Program.

And while many of the productions have lower budgets than dramas, sitcoms and children’s programs, some of them may cost more than you think. On shows featuring music, for example, music licences can eat up your budget quickly. Adding name talent – as hosts or judges – will also likely add to your budget.

Many reality TV producers try to use corporate sponsorships – and multi-platform exposure – to help pay production costs. And while broadcasters used to discourage these arrangements (on the basis that it could interfere with their own ability to attract advertisers), they’re recognizing that it may be the only way to finance reality TV series.

Sponsorship agreements

Sponsorship agreements set out how much the sponsor will pay and when, as well as how much – and what kind of – promotion the sponsor will receive in return. For example, the sponsor may have a featured spot on the show’s website or may have the right to run contests relating to the show, or have product tie-ins.

In addition, a sponsor may try to negotiate an option to sponsor shows in other territories that are licensed by the owner of the format rights. And it will likely also negotiate a breach and morals clause giving it the right to terminate the agreement (and perhaps recover some or all of its investment), if something happens on or in connection with the show that could hurt the sponsor’s reputation.

In the next column, we’ll look at the reality of the legal paperwork in reality TV – and how releases may help protect you from your participants.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)

-www.mcbinch.com