Why buy the format when the premise is free?

We could be heading back to the dark days of 2004/05, when accusations of TV format theft were flying all over the place, if what appears to be a leaked memo from ABC Studios is anything to go by.

The memo (left) was apparently sent to US showrunners and exec producers to encourage them to 'be inspired by' successful foreign shows rather than pay the licence fees, and it has set the format industry ablaze. It's been emailed around Hollywood for the past few weeks and is now making its way out to the international market, after first appearing on LA blog site Deadline Hollywood Daily.

ABC Studios wouldn't comment on the memo, when contacted by C21, but it is seemingly written by ABC studios exec VP Howard Davine and tells exec producers who have deals with the studio that he would prefer that they come to him with hits from overseas before they licence the US format rights, so studio mandarins can see if they could get away with copying the "underlying premise" without having to licence the actual format.

The memo has split the format industry down the middle, with some saying it's a blueprint for format theft, and others saying it's a legitimate strategy for avoiding paying for something you don't have to. After all, "why pay for the format when the premise is free?" asks one online commentator. Furthermore, some remade shows end up so unlike their originals that some question why a licence was required at all. In the memo, Davine is quoted as saying: "Often-times, what is appealing in the format may be nothing more than a general underlying premise, which, in and of itself, may be no reason to licence the underlying property."

The downsides of format licensing are then listed: the original creators wanting exec production credits on the resulting show, "adding an unnecessary layer to the creative process"; the "significant" costs of format fees and exec production fees; a large chunk of the backend going to the original creator; and the added expense of having to then licence further rights, if the show hits, such as for a spin-off feature film or stage production. The memo also points to one of the oldest problems in format business, that of the original producer wanting unrestricted rights to sell their original show in the US, and the distributor of the new US version wanting unrestricted rights to sell their show internationally.

ABC Studios is apparently learning the lessons of Ugly Betty (left), which is a huge domestic and international hit but is based on IP its US producers (which include ABC Studios) and distributors (Disney-ABC International Television) don't own. The ABC Studios man then, if the memo doing the rounds is for real, suggests that instead of licensing foreign formats, either pitched via talent agents or spotted themselves, producers should first discuss the format in question with ABC Creative Affairs. This is so the studio can "make our own independent evaluation whether the licence of the property is necessary or appropriate."

The industry's reaction to the memo has been two-sided. One commentator on the original DHD story accuses the site of fear-mongering, adding: "Doesn’t this simply explain the legal need to differentiate between an inspirational source and a direct influence?" Another says: "Nothing in that memo proposes ripping anyone off, they are simply trying to protect themselves from over-zealous agents and attorneys." Others, however, are concerned that the memo will mean their ideas are now more likely to be stolen. One described the memo as "an elaborate justification for plagiarism" while another warned: "Who in their right mind thinks this attitude will stop with foreign properties. If they want your idea, but haven’t worked with you before, they’ll just go through the same process. We all need good lawyers."

The memo might simply be guilty of putting down on paper what most studio business affairs execs already think, but many on the creative side of the business are criticising its somewhat cavalier attitude to the ownership of original ideas. The original creators of any hit show don't like being reduced to simply "an unnecessary layer" in the creative process of the US version. And while producers, both domestic and foreign, are now worrying that ABC Studios might hear their pitches and simply take the "underlying premise" for free, the real issue is that across the studio lot from Davine's office is a very big company that relies on distributing not only US programming but also intellectual property. It's called Disney. Perhaps executives there won't appreciate a similar attitude being taken by its international clients when it comes to Disney's own formats?

Ed Waller 5 Aug 2008 © C21 Media 2008 http://www.c21media.net/features/detail.asp?area=24&article=43551