Game shows play an important role in Vietnam’s entertainment industry as well as in the global market. Many well-known game shows from other countries have been franchised or licensed to air in Vietnam, including “Who Wants To Be A Millionaire?”, “Vietnam’s Got Talent” and “The Voice”, attracting large audiences and generating billions. of VND of marketed activities.
Other popular shows have been developed domestically – some entirely original, but many bear a strong resemblance to existing shows from other markets, with similar gameplay, similar settings, and even similar names.
This raises an interesting question from an intellectual property perspective, whether the owners or creators of game shows can accuse these copies of infringement. In other words, are format rights recognized as copyright and can a game show be protected by intellectual property law?
Overall, 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 for the recognition of television formats as intellectual property, firmly believes that format rights are protectable and works to convince courts and legislators 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 scholars is that because the format of a game show consists only of ideas, which are not protected by law, it cannot be copyrighted. (for reference, Green v Broadcasting Corporation of New Zealand in 1989). However, others argue that while a game show format is an intellectual creation and contains key elements that have unique originality, and is not simply a combination of general and mundane elements , it may be protected by copyright law (for reference, Meakin vs. BBC  EWHC 2065).
Vietnamese Intellectual Property Law does not stipulate any protection of formats and there is no provision on violation and enforcement of format rights. In other words, format rights are not yet recognized in Vietnam. However, it is believed that a game show may still be separately protected under intellectual property law via copyright for (i) literary works for scripts; and (ii) dramatic works for the “expression” of the game show on stage (including concept, structure, studio and lighting design, rules, etc.).
Intellectual property law does not oblige copyright holders/authors to register their works (in this context, the literary work or the dramatic work), but it is a recommended way and easy to prove ownership of a copyrighted work to avoid possible infringement.
Assessing Copyright Infringement Between Game Shows
While there is a way to partially copyright a game show, when it comes to a copyright infringement claim, it’s much more complicated, especially when the Global entertainment industry has created and televised hundreds of game shows with numerous features and elements. in common.
To establish copyright infringement, including for literary and dramatic works, there are at least three criteria to consider: originality, similarity of the disputed works, and the will of the alleged infringer.
Originality can be difficult to prove. Many game shows fall into recognizable categories with similar ideas and structures, like quizzes or talent contests. For example, most singing contests, like the “Idol” and “The Voice” franchises, have contestants demonstrate their talents on stage, after which panelists/judges give feedback and scores, and the contestants are eliminated. from round to round until a championship or grand finale finds a show winner. When the format of a game show has these very common elements, it’s hard to argue that they make the show unique. And even though every game show is an interactive event where participants have the freedom to act and comment beyond any pre-written script, it’s doubtful that such action and reaction can make the whole game show original.
It is also important to discern similarities between disputed game shows when determining whether an allegedly infringing show is a copy or derivative work of the previous show. To this extent, it is necessary to identify whether the similar elements are essential to the whole show or just a coincidence. For example, the two “Who wants to be a millionaire?” and ‘Rồng Vàng’ (a game show popular in Vietnam from 2003 to 2007, licensed from a Thai broadcast) have similar elements and structures in which a single contestant tackles a series of general knowledge multiple-choice questions to win a big cash prize, and can confer with family and friends to find the answer.
A viewer of both shows would certainly recognize a resemblance and might mistake one for the other. However, to our knowledge, no infringement action has ever been brought, probably due to the originality issue. The most similar elements were common or even inherent to the quiz show genre, while the elements that were arguably the most distinctive – like the cash prize amount, a key part of the “Millionaire” brand – were different.
Finally, the plaintiff must prove that the infringer intentionally copied the copyrighted work in question. It is possible to prove this indirectly by demonstrating that the original work was created, published or registered before the imitator, and that the infringer should have known that his work could infringe the rights of the plaintiff.
Although Vietnamese Intellectual Property Law does not expressly provide copyright protection for game shows, it is clear that a game show may be indirectly protected through its literary 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 blurry line between copyright infringement and similarity of ideas between game shows. Thus, the originality of the show and the similarity between the contested game shows and the will of the infringer should be carefully assessed and assessed. Only when all the criteria are met can we say that there is copyright infringement of the game show.
Intellectual Property Director of HCMC Branch, T&G Law Firm LLC (TGVN), local associate firm of Tilleke & Gibbins
Phuong Thuy Nguyen
Partner, T&G Law Firm LLC (TGVN), local associate firm of Tilleke & Gibbins