My Kitchen Rules versus The Hotplate: battle of the cooking shows reaches boiling point

The Federal Court of Australia has dismissed the Seven Network’s application for an injunction that, if successful, would have prevented the Nine Network from continuing to air their new reality television series, ‘The Hotplate’.

The proceedings were brought by the Seven Network on the basis of alleged copyright infringements by the Nine Network in relation to the broadcast of The Hotplate. The Hotplate is a cooking show that involves restaurateurs serving meals to other competitors and two judges who score the meals they receive and the overall restaurant experience. The Seven Network alleges that The Hotplate reproduces key elements of ‘My Kitchen Rules’, a successful reality television series created by the Seven Network. My Kitchen Rules involves teams of amateur cooks who each set up an ‘instant restaurant’ in a home environment. Fellow competitors travel to each of the instant restaurants with two judges and score each other based on their dining experience.

The Seven Network alleged that “each episode of ‘The Hotplate’ produced by or on behalf of the Nine Network reproduces in a material form a substantial part of each of the My Kitchen Rules literary works and the My Kitchen Rules dramatic works.

Senior Counsel for the Nine Network, Bruce McClintock SC submitted that a distinguishing factor between the shows is that My Kitchen Rules involves amateur chefs cooking in homes whilst The Hotplate involves chefs cooking in established kitchens.

Justice Nicholas did not grant the injunction sought by the Seven Network. The Nine Network is therefore at liberty to continue to air episodes of The Hotplate until such time as the Federal Court of Australia makes a final determination in the proceedings.

The decision handed down by Justice Nicholas does not find in favour of either of the television networks, but rather stipulates that the Seven Network has a reasonably arguable case and that the matter should therefore progress to a final hearing. Justice Nicholas formed the view that the Seven Network “will have the opportunity to vindicate its rights at an early final hearing” as the hearing could take place prior to the launch of a second series of The Hotplate.

In his judgment, Justice Nicholas found that “any loss of exclusivity – if it is truly attributable to Nine having infringed Seven’s copyright in the My Kitchen Rules format – could be remedied reasonably quickly.” Further to this the Court found that “Seven’s commercial arrangements with other producers and broadcasters are unlikely to suffer merely because the Court has refused Seven an interlocutory injunction.” It was found that “it would be difficult for Nine to re-establish the program’s momentum after it was abruptly halted by injunction and then “shelved” for however many months it takes to determine the proceeding and any subsequent appeal.” The submissions of the Nine Network found favour with the Court to the extent that it was accepted that the Seven Network’s difficulties in proving its damages would not be any greater than those that would be experienced by the Nine Network if it was ordered to cease airing episodes of The Hotplate.

In order to succeed in copyright infringement proceedings, the applicant must:

1. Identify the copyright work it alleges the respondents to have infringed. The Court must then determine whether copyright subsists in that work and, if so, whether it has been infringed by the respondents.

2. Satisfy the Court that there is “a sufficient degree of objective similarity between the copyright work and the alleged infringement”.

3. Satisfy the Court that there is a causal link between the copyright work and the alleged infringement

The Seven Network will take steps to satisfy the Court of each of the above elements at the final hearing in order to succeed in their copyright infringement claim.

Copyright infringement claims need not be based on either intentional or direct copying of material. The Court may find that copyright infringement has occurred where there has been indirect and unconscious copying provided the alleged infringing copying can be traced back to the copyright owner’s work.

If you require any assistance in dealing with issues surrounding copyright infringement, contact local Gold Coast Lawyers, McLaughlins Lawyers.

Writer: Elise Foote

Partner: Ian Kennedy

Date: 11/08/2015