Similar ideas in films, is it copyright infringement?

Written by Angga Priancha and Olive Nabila | Read in Indonesian

The huge popularity of “Squid Game” prompted the Indonesian television industry to create soap opera scenes that have the same idea as the South Korean death-game series.

The word idea here has a deeper meaning than just the similarity of genres; it is how the film should be made, starting from the foundation of the story, the plot development, the setting of the location and the costumes of the characters to the music that is played.

The soap opera "Dari Jendela SMP" became a topic of discussion because the cast wore one-set training suits that were similar to the green costumes used by the "Squid Game" participants.

In addition to the costumes, the idea of the story is also similar. In one of the episodes, the characters in the soap opera received a mysterious invitation to play a game whose rules were not yet known.

Similar to “Squid Game”, the winner will get a certain amount of money.

The difference is that there were no lives at stake and the prize money was not as big as in "Squid Game".

“Squid Game” isn't the only series experiencing this. There is the soap opera "Kau Yang Berasal Dari Bintang" which has a similar poster design and story idea to "You Who Came From the Stars". The soap opera was discontinued following a warning from South Korea’s SBS.

Recently, Twitter was once again set ablaze by the soap opera "Dari Jendela SMP" which posted a poster that had a resemblance to the poster "Harry Potter 20th Anniversary: Return to Hogwarts".

Netizens accused "Dari Jendela SMP" of plagiarising "Squid Game" and "Harry Potter". However, if we examine carefully, even though they have the same idea, the two series produce stories with different styles of expression.

Interestingly, there is a high probability that the similarity of story ideas as happened between “Squid Game” and “Dolanan Game” is not copyright infringement.

Why is that?

TV Format: An expression of intellectual creativity or a big idea of a show?

Series, movies, sitcoms, news and talk shows are all part of television programmes (TV programmes) that we watch on television every day. “Pesbukers”, “Friends” and “Mata Najwa” are examples of different types of TV programmes.

Before airing, each of these shows must have their own ideas of why the show was made that way.

An idea is one of the many elements that make up the format of a television programme.

Marie Larsson in her thesis “Television Format – Enjoy the comfort of copyright or is there a new direction for tv-protection? The IP system from WIPO in regards to the articles in the UNHR” explains that Television Format (TV Format) is the idea behind a TV programme that dictates how a programme should be produced and what it is about. The idea is then written down and presented to the production company.

Larsson explained an example of an idea for a TV programme: “16 people were sent to a deserted island for 3 months with only clothes on their bodies. Only one person will survive. The camera will follow their every move. The winner will receive a large cash prize.”

The idea above is an example for a TV programme with the survival genre, “Expedition: Robinson”. “American Idol” and “Who Wants to be a Millionaire” are other examples of TV programmes that have obtained copyright protection and been marketed to various countries.

However, in order to become a copyrighted TV programme, it must have certain elements.

Albert Moran, professor of screen studies from the School of Humanities at Griffith University, defines the elements of the TV Format as follows:

The paper format contains a written description of a programme.
The bible format is more extensive and detailed in scope than the paper format. Under this format, the producers will write about every aspect from production and marketing to promotion. Citing blcklst.com, the bible format includes an in-depth dig into the theme, more extensive character descriptions (including a brief biography), the show's overall goals, budget, event locations and a summary of the next episodes.
Consultation of the production is the directive/suggestion from the producer of the original show.
Computer software and engines are the graphic designs and certain effects used in the programme.
Titles, including trademarks, logos and their written form
Sounds consist of written music, jingles and theme songs.
Script.
Footage.

TV Format protection problems

Copyright only protects intellectual works in the field of literature and art that have been expressed in a tangible form.

The requirement for a work to obtain copyright is to meet the elements of originality and fixation. The originality requirement aims to prove that the work really comes from the creator who made it. This means the original work should be born from the creativity of the creator.

The fixation requirement requires the idea behind a work to be realised; taking a tangible expression, for example written, illustrated or recorded through the phonogram machine. It is the result of the expression that is protected by copyright.

Therefore, in order to get copyright protection for any work, the idea must be realised. TV Format only covers the big idea of a show and not the real expression of a creation. This means it is not eligible for copyright protection.

In TV Format, what can be protected so far is the result of the idea, namely the footage. However, through the development of legal practices, the existence of TV Format has begun to be recognised by the court.

Although the detailed elements that can shape the format of a TV programme have been formed, it is not easy for the programme to be protected as a whole. That is because although each of these elements can help the process of expression of fixation, it is difficult to protect the combination of these elements as a TV Format. This is because the rules of these elements still open the possibility of different expressions before being recorded in video.

This means TV Format as a whole remains a set of ideas that cannot be protected by copyright which only protects ideas that have been realised.

In general, TV Format only contains how a programme will be displayed and not the realisation of the idea.

For example, you want to make a film that tells the story of “high school life”. The phrase “high school life” is the idea of your film. The step to realise it is by producing the film. The process of developing the storyline, making the script, determining the number of players and characters, determining the location, title and others are still ideas that are not protected by copyright. What is protected is the result of the film as a cinematographic work.

This problem is getting increasingly complex because not all TV programmes are standard arrangements. Take, for example, game shows. The cast are only told what kind of game they will play, but the script still requires improvisation from the cast.

This is in contrast to the TV programme “Who Wants to be a Millionaire” which format is easier to standardise because it doesn't require improvisation from the participants. In this programme, participants only need to answer a number of quizzes to win prizes. However, the continuity of how the questions are answered is still in the form of a set of ideas and is not a standard expression.

So, what kind of protection can be provided?

First, protection can be provided through footage of the recorded television format and not the format in its entirety. Just like Disney which owns the copyright to its films.

Another option is to break down the components behind the TV Format. For example, soundtracks are categorised as songs and music as scripts or phonograms; or scripts can be protected in the group of written works.

However, apart from copyright, TV Format makers are now starting to use trademarks as a legal umbrella. This is reflected in the practice of TV Format franchises which is widespread throughout the world, such as the Idol series, X Factor series and Got Talent series.

To protect TV Format with trademark, the originator of the TV Format idea can register programme titles, logos and slogans/jingles as part of a trademark in various classes (both national and international) and in various countries. The goal is for consumers to be able to distinguish TV shows with similar idea formats using distinctive mark that can be protected by trademarks.

TV Format case

One example is Banner Universal Motion Pictures Limited (BUMP) which claimed to have developed the Minute Winner format in 2003. In 2005, BUMP met with TV Friday to discuss the production of the TV programme.

BUMP has included a confidentiality agreement when presenting the format. However, TV Friday then produced a TV programme called “Minute to Win It”; the format of which was sold to various countries.

A UK court deemed that the format proposed by BUMP was still a simple core idea and did not attract any protection.

So, are similarities in a film a copyright infringement?

Similarities of ideas in a film cannot necessarily be called a copyright infringement. That is because copyright does not protect ideas. After all, even though the idea is the same, the output will definitely be different.

For example, let's say that two people take photos at the National Monument (Monas). Even though the idea is the same, namely a photo with Monas as the background, the results from the two lenses will be different.

Although the soap opera "Dari Jendela SMP" has the same idea, namely playing a mysterious game to earn money, the costumes, location settings and game types were different. This resulted in two different stories, namely “Squid Game” and “Dari Jendela SMP”.

Things will be different if “Squid Game” has obtained legal protection through copyright/trademark. In that situation, "Squid Game" can file a lawsuit over the similarities in the soap opera.

Another analogy, there are many films with the death-game genre, one of them is "Alice in Borderland". Although they have the idea of “forcing participants to play certain games to survive”, they produced different cinematographic expressions.