At the time of writing, adult humans dressed in actual long pants are exiting a superior court following argument for the future of reality risotto cooked by gluggy people on TV. In the matter of Unforgivably Predictable Competitive Cooking Show vs A Fairly Similar One That is Every Bit as Shit, there can be no winners. Well, technically, there will be a winner, of sorts, as judgment is set to be passed in an interlocutory case lodged by the Seven Network against Nine and production company Endemol.
According to reports, Seven, the rumbling corporate gut that upchucked My Kitchen Rules straight in the face of the culture, is seeking an injunction against broadcast of Hotplate, a new Nine cooking show claimed to infringe copyright. Which is to say, Seven wants Nine’s Hotplate, claimed to mimic MKR to an unreasonable degree, turned off.
Acting for Seven, Richard Lancaster SC submitted to Federal Court today that Nine’s new ratings sizzler deliberately compromises the exclusivity of a successful show that has — fuck me — recently commenced its sixth season.
There’s no accounting for the broad public taste that sees twits who should never go near a spatula talk about their “food journey” emerge on screen in large numbers. There can be, however, legal account of the appropriation of certain TV elements.
An “element” is the kind of thing you might, as a reality viewer, recognise in the mood or the rhythms of a particular show. It could be in a particular seating configuration of judges or, say, in the rose ceremony of The Bachelor or the swivel-chairs of The Voice. Certainly, you could probably read about these material elements in a TV production “Bible”, of the sort that Seven alleges that Nine sought to swipe.
You can’t legally protect a television pitch and, it seems a general principle of copyright law that you can’t even protect a television format. But, you can argue, as Seven seeks to, that copycatting particular elements of a show is infringement. Darren Sanicki, Senior Partner at entertainment firm GI & Sanicki Lawyers says, “The basic law in this area is that there is no copyright in an idea. There is no copyright in an idea for a cooking show just as there is none in a singing or a renovation show.”
So, you can’t just say “that’s my idea” to a judge and reasonably expect them to listen. Where a producer who feels they have been ripped-off can take issue, says Sanicki, is in “Execution or manifestation of that idea once it is reduced to a material format”.
One of these manifestations may be the kinds of people used in particular roles in a program. Reports indicate that Seven has argued that casting decisions on Hotplate explicitly mimic those of MKR. Presumably, Seven takes issue with Nine’s appointment of two male judges, one of whom, Tom Parker Bowles (yes, that Parker Bowles) is, like Manu Feildel, a European food professional and therefore “sophisticated”. It is my amateur opinion that pursuit of this argument is fruitless. Comparing the wholesome Parker Bowles to sex-beast Feildel (say “it needs more soss” Manu!) is like comparing Morris Dancing to burlesque. But, my expertise in this matter is clearly libidinal and not legal, which is why I talked to grownups.
Another element, says Sanicki, may be the specific terms of competition. And this competitive similarity has been argued today in court by Lancaster who said Hotplate, which pits professional cooks against each other in their own restaurants, borrows elements from MKR, which pits amateur cooks against each other in their own homes. “The drama is having your competitors and the judges coming to your domain for the purpose of judging you,” said Lancaster.
Sanicki, who is yet to view Hotplate, says, “if the only significant difference you can demonstrate is that one program features home cooks and the other features professional cooks — and I am not saying this is the case — the injunction may be granted”.
Robyn Ayres, Executive Director for the Arts Law Centre of Australia, will wait for the decision with interest. Infringement of copyright in reality TV is a tricky area, she says. “Most judgements come out against the idea that there is copyright in a format”.
“But when there is substantial similarities in the elements — mood, tone, structure, key events, main participants — that’s when they have been successful in making an infringement claim”.
The apparent spontaneity of reality TV confuses the matter of mimicry, says Ayres. So, even if participants are wont to replicate a type — the bossy mother and daughter in matching animal print frocks, the bitchy gay couple who consider themselves a cut-above — or repeat phrases — like “This is my food journey”, “I like to put love on a plate” or “I’m not ready to go home” — then it’s difficult to prove that these moments are manufactured to the degree they could be copied.
Justice John Nicholas is yet to make a judgement on the injunction and has said that he will reserve his decision. So if you were hoping to enjoy the yakitori stylings of Marie and Emi tonight, you will not be disappointed. And you may be pleased to know the Justice will be compelled to watch this episode, likely along with the back catalogue of MKR.
There is, of course, good reason for copyright law. When cautiously applied, it can uphold the professional possibility of creative acts. That creators can take actions against out-and-out forgers is, much of the time, a good thing and, expense notwithstanding, further ruling and interpretation in copyright infringement is useful.
What is less useful, though, are programs like Hotplate and MKR. While it is, of course, legally and materially defensible to protect their copyright, it is, culturally speaking, indefensible to do anything to keep them on the air. In my post-material fantasy, Justice Nicholas would take both Nine and Seven’s claims to creative innovation and fry them on a griddle of searing impatience. He would say, “I sentence both of your executive producers to one year as a dish pig” for inflicting this hot swill on a nation who can’t escape such low temptation because, really, there’s no less soporific meal on offer.
Even if such shows don’t explicitly steal from each other, they certainly thieve from the one-size-feeds-most trough of ideology. They tell us lies like “you can make it if you try” and they prompt us to hate some people for not trying hard enough and love others for their dedication to the false progress of a “journey”.
Life is not a journey any more than any of these shows could be creditably called “original”. MasterChef, with its counterfeit cheerleading for farmstead produce, can choke on its contract with Coles. MKR, with its forced affection for cooks pulling themselves up by their clog heels, can eat a whole crock of Pete Evans’ Paleo emu balls. And Hotplate can suffer malfunction beyond repair.
They’re all unforgivably bad and they all thieve from the lie that we can improve ourselves if we fight. All the while on-screen, there is evidence that nothing improves the rough personal acts of striving. Because, somehow or another, these reality recipes for despair have rotted beyond use.
Previously by Helen Razer: Reviewing the ALP conference