Coming This Fall: A Timely Copyright Dispute
The fall television season is upon us, with networks busily promoting their new shows in hopes of creating the next lucrative franchise. And new creative endeavors often bring us interesting intellectual property issues. This time, it’s a copyright dispute involving time travel. Ok, not really. But it does involve a show about time travel.
Not Every Show Is A Hit
Like the changing leaves, each autumn brings us crime procedurals and bumbling husband sitcoms – because those formulas are tried-and-true money-makers. But the networks occasionally try something truly new. Sometimes it works – think Seinfeld or The Simpsons – both of which broke new ground and became extraordinarily lucrative for their network backers. And sometimes it doesn’t – think the critically acclaimed but too-weird-to-go-mainstream Pushing Daisies. (And yes, I loved that show.)
Among the retread and the bold, every now and again you get the feeling that someone sold the same idea all over Hollywood because similar concepts appear simultaneously in new shows like the two Chicago-based medical dramas, ER and Chicago Hope, premiering at the same time in the fall of 1994.
This year is no different, with a plethora of slightly-tweaked versions of familiar themes – including a reboot of 1980’s favorite MacGyver. And if you have been paying attention to the seemingly endless supply of advertisements, you might have noticed a few time-travel themed shows making their debut: Fox’s Making History, ABC’s Time After Time, and NBC’s Timeless. Anyone who has watched TV since the advent of Doctor Who in 1963 knows that time travel is not new to the small screen, so what’s the problem? Well, one of these shows, NBC’s Timeless, has drawn a lawsuit not from its U.S. network competitors, but from the producers of a Spanish TV series.
You Can’t Copyright Ideas, But Characters Are A Different Story
Of course, we all know ideas are not copyrightable. That’s why television shows with similar concepts like time travel can debut at the same time without a massive amount of copyright litigation. The 1994 Chicago-based hospital dramas battled not for rights in court but for ratings in the living rooms of America. However, as we have discussed before, characters are different. While copyright might not protect conceptual ideas, it does protect the expression of those ideas in particular ways.
It turns out that the characters in Timeless are strangely similar to the characters in a popular Spanish television series called El Ministerio del Tiempo produced by Onza Partners. Both involve a team of two men and one woman – a scientist, a soldier, and an academic – that travel through time to stop criminals from changing history. In addition, there are (alleged) similarities in the backstories of the characters, their apparent motivations, and the setting, pace, and mood of the show.
Onza Partners, which holds a registered Spanish copyright in El Ministerio del Tiempo, have licensed the show in several other countries. And they were seeking a similar arrangement in the United States. They began negotiations with Sony to create an American version of the show during the summer of 2015.
According to the complaint, they provided a copy of the show and some promotional materials to California-based talent agents for the purpose of finding an American backer to work with specified writers on an American version. The talent agents connected them with Sony and negotiations ensued. According to the complaint, Sony abruptly halted negotiations at the same time Hollywood trade press announced that the same writers were writing the show now known as Timeless for Sony. Now that the show is about to air on NBC, Onza filed suit in the U.S. District Court for the Central District of California alleging copyright infringement.
The Berne Convention
While Onza holds a Spanish copyright, not a U.S. registered copyright, it can still sue in the United States because of the Berne Convention. Under the Berne convention, a signatory country, like the United States, must give the same copyright protection to copyright holders from other signatory countries, like Spain, as it would its own copyright holders. But just because Onza can sue, does not mean it will prevail.
Onza will have to prove that Timeless infringes on the copyrightable elements of El Ministeria del Tiempo under U.S. law. While it might have an easy road in terms of proving access to the copyrighted work, proving substantial similarity of protectable elements – not just abstract ideas – could be an uphill battle. Can they do it? Only time will tell.
Photo courtesy of JD Hancock, used with permission and without modification under a creative commons license.