Pasapalabra is one of Spain’s best-known television game show. What not everyone knows is that “the game” has gone from television to the Courts.
The change of television network has not been enough to stop the so feared litigations: first it was about its format, and this time, about its most iconic element: “EL ROSCO”.
In 2019 the Court ruled that the Mediaset group (Telecinco) should cease broadcasting the programme and now, it is the Dutch audiovisual group MC&F BROADCASTING PRODUCTION AND DISTRIBUTION, C.V., who restarts the game.
MC&F filed a lawsuit claiming, among other things, the recognition and declaration of the ownership of the rights over the reputed “ROSCO”, which is the well-known and widely followed final test of the contest, as an original work susceptible of being protected by intellectual property.
That is to say, the action and the right, which is an unrenounceable and inalienable moral right, to demand recognition of the status of author of said work (art. 14.3º TRLPÎ).
However, Atresmedia (Antena 3) has been more fortunate, and the Commercial Court No. 8 of Barcelona has not upheld the claims of MC&F and, consequently, has dismissed the lawsuit.
The court considers that neither the authorship nor the originality of the game itself has been proved, since not every television format can be protected by intellectual property, but only that which represents a concrete embodiment of an original idea that reflects the intellectual creativity of its author.
In this sense, it is not considered that the thesis that the television game at issue constitutes an original work with the necessary elements to be protected as a television format under intellectual property law has been sufficiently proved by any means of evidence with sufficient probative value for that purpose (such as an expert’s report)
The burden of proof on this point was on MC&F, which had to prove not only the originality of the disputed game as a manifestation of an intellectual creation of its author, but also that the game constitutes a specific qualitative embodiment of a general idea or conception, endowed with substantivity and autonomy.
If, as MC&F claims, the test known as “EL ROSCO” is not a mere adaptation, but an original format endowed with autonomy and substantivity, as a manifestation of the intellectual creation of its authors, it should not only have claimed this but also proved it.
However, it is clear that it is a really complex issue, as the judge himself indicates in the same judgement when he expressly states in the section on procedural costs that “The doubts, both factual and legal, which are serious and objective, raised by a trial such as the present one , make it advisable to omit a special mention of the procedural costs of the first instance of this trial“.
In any case, the judgment is not final and can be appealed before the Provincial Court of Barcelona, so the next question is … Will the “ROSCO” be deemed complete or will there be a next round?
Article by Susana Correa.
