On the 23rd of September, the Court of Rome has decided to approve the complaint made by RAI (Italian national broadcast channel), Milly Carlucci (TV presenter of the show “Ballando con le Stelle”) and Bailandi Entertainment s.p.a. against RTI and Endemol (Mediaset group) for the infringement of broadcasting rights on RAI’s TV show “Ballando con le stelle” by Mediaset’s tv show “Baila!”.
Milly Carlucci and the other co-authors of the show “Ballando con le Stelle” started a complain to protect their copyright on the show. In a second phase RAI also intervened in the complaint arguing the infringement of competition law as well. Bailandi Entertainment s.p.a. (having the licensing of BBC’s format of this show “Strickly come dancing”) intervened asking for the protection of the format of the show and asking for an order of removal of the show “Baila!” as it is a counterfeiting of “Ballando con le Stelle”.
In the other side, Mediaset had bought the rights of the format of the South American show “Bailando por un sueno” from Endemol for which they declare having a differentiated show, unique and original.
In its decision the court of Rome defines that both shows are in the talent show category, more precisely in the dance competition, within the combination of dancers and a so called VIP (very important people).
The decision of the judge Muscolo specifies that according to the jurisprudence a television show is qualified as intellectual work protected by the copyright (l.n. 633/41) as long as it contains creativity (even if in a modest way). It excludes works having an evident banality.
Furthermore the Court stress that the comparison between the two shows, necessary to check if there is counterfeiting or not, has to be done in an immediate way. It has to use parameters such as the mass market consumer and in this case in relation to the television work the mass market viewer.
Having said that, the Judge underlines that in this case the show “Ballando con le Stelle” is characterised by a sufficient level of creativity to differentiates itself from other dance competitions in many elements. Those characterised elements are also presented in the competitor show “Baila!”. This show has a few differentiated elements and those elements are marginal and not sufficient to give the television work enough level of creativity and autonomy to differentiated it. So according to an immediate impression and perception of a mass market viewer of the two shows, it appears that one show is reproducing the other.
The judge concludes that there is counterfeiting of “Ballando con le Stelle” and prohibits Mediaset to broadcast “Baila!” or another show, even with another name, that has the same characteristics of the show “Ballando con le Stelle”.
There is an infringement of the intellectual propriety and so the fumus boni iuris of the claim and the demand of removal of “Baila!” subsists.
The decision states in the purpose of this prohibition for Mediaset, that the question of the protection of the format is absorbed by the ascertainment of the protection of the show. In addition the decision concludes that there was no infringement of the competition rules.
The decision will probably soon be appeal by Mediaset, as on the 26th of September the first show of “Baila!” was broadcast, as Mediaset states out that the two shows are different.
Tribunal di Roma sentenza Baila! del 23 Settembre 2011
