Innovative formats, ideas and concepts often have great value. For example, successful TV shows such as the British format Who wants to Be a Millionaire, Big Brother, Pop Idol (American Idol, Deutschland sucht den Superstar) and America's Next Topmodel (Germany's Next Topmodel) have been exported to numerous countries. In stark contrast to the great economic importance of such formats and show concepts, the possibility of claiming legal protection under copyright law in Germany has been very limited to date. However, two recent decisions by the Federal Court of Justice and the Higher Regional Court of Cologne have opened up new possibilities.
An important principle of copyright law states that pure ideas should be freely available to the general public and therefore cannot claim copyright protection. Protection for formats, ideas and concepts has therefore been largely rejected by copyright case law to date. The format developer had to rely on claims under trademark law and the Unfair Competition Act, whose scope of protection can only cover formats to a very limited extent and can often be circumvented by minor modifications.
From previous case law
In its decision on the "Dalli Dalli" program format, the Federal Court of Justice (Judgment of 14.11.1980, Ref.: I ZR 73/78 - Quizmaster) that a combination of musical and vocal performances, stage scenes, reports, interviews, announcements and game director activities regularly lacks a formative unit. Only the individual performances of an entertainment program could have the character of a work in a specific case, but not the entertainment format as such.
The Federal Supreme Court (Judgment of 26.06.2003, Ref.: I ZR 176/01 - Broadcast format) with regard to the family programme "Kinderquatsch mit Michael": In contrast to television series, which are characterized by fictional content and typically tell a continuously developing plot in individual episodes, a television entertainment format is not linked by content elements, but only by the matching format. A work within the meaning of the Copyright Act can only be the result of the creative shaping of a specific subject matter. This is lacking in the case of mere instructions for the design of similar other material that is detached from the content.
The Munich Regional Court (Judgment of 14.01.2010, Ref.: Ref. 7 O 13628/09) rejected the copyright protection of a soccer casting show format on similar grounds. Although the plaintiff had set out his idea for a soccer casting show in an elaborate concept and thus provided a framework for the design of a soccer casting show, this was only a design guide, but not the actual implementation in the form of a soccer casting show.
Recent case law
In the case of the educational games "pocketLÜK", "bambinoLÜK" and "miniLÜK", the BGH (Judgment of the BGH of 01.06.2011, Ref.: I ZR 140/09 - Educational games) and subsequently the OLG Cologne (Judgment of the Higher Regional Court of Cologne dated 13.07.2012, Ref.: 6 U 225/08) has now surprisingly taken a more differentiated view and commented in more detail on the question of when an abstract idea or a concept has a concrete form and is therefore eligible for copyright protection.
The plaintiff developed and marketed educational games under the didactic approach "learn-exercise-control". The educational games consisted of exercise books and a control device. The defendant produced and marketed similar educational games under the trademarks "Taschen Logolino", "Logolino Junior" and "Logolino", which functioned largely according to the same principle as the plaintiff's educational games. Protection as a representation of a scientific nature was considered.
The BGH came to the conclusion that neither the exercise booklet nor the control device could be protected by copyright on their own. The contents of the game were also not eligible for protection, as it is not the intellectual content of a work, but only the specific form that can be the subject of copyright protection. The decisive factor is not what is depicted, but how it is depicted.
On the other hand, claims due to an infringement of copyrights to the educational games consisting of control devices and exercise books could not generally be denied.
There are no legal objections to considering the control devices and the associated exercise booklets, which can and should only be used together as an educational game in a meaningful and appropriate manner, as a unit for the purposes of copyright assessment. The exercise booklet and control device are intended and suitable in combination to illustrate to the user, with the help of graphic patterns or matching of the color fields, whether he has answered the question asked correctly. Accordingly, the "LÜK" educational games serve to convey scientific knowledge with the help of graphic representations.
In the case of representations of a scientific nature, the creative achievement cannot be derived from the game idea or concept as such or from the abstract method of implementing an idea. In the interest of the general public, the ideas and concepts or methods of presentation must remain free for use.
However, this only applies insofar as the idea and concept remain in the abstract, detached from the concrete design of the work. Insofar as they have found their concrete form in a specific work, the work design is accessible to copyright protection in its individual form.
This applies in particular to the selection, form, design, arrangement and presentation of the information provided. Accordingly, game ideas and systems may not be protectable as such, but in their specific form. In this context, the game idea underlying a game in its concrete form is part of the protection of works, provided that a game can be individually designed in its phases in terms of content.
Conclusion
Formats, ideas and concepts can exceptionally be Copyright protection The right to enjoy a copyrighted work is granted if the underlying (game) idea has found expression in a concrete design, but this design is not directly predetermined by the format, but there is still room for maneuver in the design, which the developer has used as an expression of his individual intellectual creation.
It is true that the right to representations of a scientific nature on which the decisions are based has a peculiar scope of protection. However, it cannot be ruled out that the decision is also transferable to TV shows and formats, with the consequence that whenever a concrete design of the scenery, the props and the game elements in the overall view shows an expression of the show idea that is not necessarily predetermined by this idea, but in which leeway in the design of the form has been used artistically, the format could be eligible for protection.
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