ABC’s reality show “The Glass House,” set to debut June 18, involves 14 contestants living together in a house rigged with cameras, with the last person standing able to win a cash prize.
The flattery of imitation has been taken to a whole new level in reality TV, but in this case it was a bit too insincere for CBS, which filed suit last month claiming the show is a ripoff of its long-running “Big Brother.”
The ligitation means that once again two networks are poised for legal showdown over a reality show — and the question of when an idea slips into the realm of copyright infringement.
The CBS suit isn’t just about a competitor lifting from its voyeuristic mainstay, but trade secrets, and the charge that “Glass House” uses “Big Brother” techniques involving story development and camera placement. The Eye was poised to file a temportary restraining order on Thursday to stop “Glass House,” citing the deposition testimony of “Glass House” exec producer Kenny Rosen.
While the reality business long ago established a central registry to protect formats and resolve disputes, that has by no means kept cases from coming to court, and the results have not been conclusive. If anything, they’ve highlighted the difficulty in pursuing claims in the unscripted format vs. the scripted format.
“It’s a developing area,” said Stanton “Larry” Stein of Liner, Grode, Stein, who has represented plaintiffs in high-profile disputes, including litigation over “Wife Swap” and “Wipeout.” “The courts are struggling to apply traditional copyright principles to a new form of expression.”
In court documents, ABC argues that even in cases where there are shared elements in nonfiction shows, courts have found in favor of defendants. They cite the 9th Circuit’s 2003 decision in Rice vs. Fox Broadcasting Co., in which the owner of a video called “The Mystery Magician” challenged Fox’s specials in which a masked magician revealed his secrets.
The court found there were “only a discrete number of ways” to show a magician spilling the beans and therefore they could not be protected. Almost a decade ago, CBS sued ABC, claiming that “I’m a Celebrity, Get Me out of Here” infringed on “Survivor,” but the court found that there were enough differences in the shows (like photography and tone) to reject the claim.
“A basic tenet of copyright law is that ideas alone are not protectable,” said William Archer of Lewis Brisbois Bisgaard & Smith. “Consequently, when the courts compare the works, they have to focus only on the protectable elements, not the basic idea. When you eliminate all of those, you have to get down to the concrete elements that are substantially similar but don’t flow from the basic idea.”
He cites established legal principles, like the “scenes a faire” doctrine, or that an expression that flows from a common idea does not infringe. An example: a “High Noon”-style gunfight in a Western, which has become such an accepted cliche that it is part of the genre. There’s also the “merger” doctrine: When there’s only one way to express an idea, it can’t be protected.
In his article, Archer cited a suit against the Food Network, claiming that its show “Inside Dish” with Rachael Ray was a ripoff of a proposal sent to them for a show called “Show Biz Chefs.” The court said although they “look similar … so does every talkshow to some extent.”
A problem with reality shows, Archer said, is they are “supposed to be unscripted, and arguably there won’t be anything that flows beyond the basic idea.”
Yet the public notion that reality TV is truly spontaneous is giving way to the acceptance that there is an art to making it seem spontaneous, and other legal observers believe that is the realm where the genre will find protection in the future. Other factors may come in to play. In its argument in its suit against ABC’s “Wipeout,” Tokyo Broadcasting System claimed that the resemblance to “Takeshi’s Castle” and other properties it owns went beyond that of merely being obstacle-course competitions but to sequencing and specific games, like jumping on a floating island using a long pole. Nevertheless, the case was settled late last year.
For now, CBS’ suit emphasizes access: Nineteen staffers from “Glass House” once worked on “Big Brother.” ABC contends that is standard industry practice; they also worked on other reality shows. But the trade-secrets claim may be the twist that distinguishes this case from other suits. It will still be important for the court to compare both shows side by side.
So Fox may have been irked that “The Voice” is NBC’s version of “American Idol,” but there are other ways to respond than litigation. As the New York Times pointed out this week, Fox has a show that looks and sounds suspiciously similar, called “The Choice,” only this time it is about dating.
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