Federal jurist says he's 'not persuaded' by CBS' copycat claim
A Los Angeles federal judge said Friday that he was inclined to deny CBS’s effort to stop ABC’s “Glass House” in advance of its debut on Monday.
U.S. District Court Judge Gary Allen Feess said that he was “not persuaded” that CBS’s claims of copyright infringement and theft of trade secrets. After about an hour hearing, he said he would issue a written ruling soon but he was “unlikely” to change his mind.
CBS claims “Glass House” is a ripoff of “Big Brother.” It is seeking a temporary restraining order to halt the show.
Feess said that he didn’t buy CBS’s argument that many of the trade secrets alleged to have been taken by “Glass House” producer were really trade secrets. And he said that the similarities between the two shows were generic ideas and not protected by copyright.
CBS said that “win, lose or draw” on the temporary restraining order, it intends to proceed with the case and even more requests to stop “Glass House” “depending on the content of each episode.”
“At the same time, we will move forward with our individual claims for liability and liquidated damages against any current ‘Glass House’ producer who violated their ‘Big Brother’ confidentiality agreement,” CBS said in a statement.
During the hearing, CBS’s attorney, Scott Edelman, said that the case had to be viewed differently from other reality show litigation because “this is the first time…where a reality show has been copied lock, stock and barrel with minor changes to make it look different.”
He showed clips during the hearing, showing the similar look and feel of each network’s promos for both shows.
Other clips showed contestants on both shows bowling. Another compared each show’s use of voice overs, and other scenes were both groups of contestants have conversations about tattoos.
The similarities, Edelman said, will “crop up” when “you have the same people doing both shows.” He was referring to the number of former “Big Brother” staffers now working on “Glass House.” Its executive producer, Kenny Rosen, is a former producer of “Big Brother.”
A challenge for CBS was not just that courts have not ruled in favor of plaintiffs seeking to make copyright claims over reality shows, but that “Glass House” has yet to debut, forcing the network to rely on “Glass House” footage from the Internet, a deposition from Rosen and other information that is out there as ABC has been promoting it.
Edelman suggested that CBS had a lower threshold to prove copyright infringement because of the access that Rosen and other former “Big Brother” staffers had to that show.
But Feess disagreed, and compared the case to another in which he presided, in which a group of documentary filmmakers sued the makers of the movie “We Are Marshall,” pointing out that they had seen the nonfiction work before setting out to make the feature. seemed to link this case to another case he presided over, in which the makers of a documentary about the plane crash that killed members of the Marshall U football team sued the makers of the feature “We Are Marshall,” claiming that it was ripped off because the makers of the movie had watched their project in creating the feature storyline. But Feess still rejected the claim.
“It is more difficult in this area” of reality television, Feess said. “The closer you get to nonfiction, the more difficult it is. The Supreme Court has said that.”
A question in the case is where the idea for a show ends and its expression begins. The former is not protected by copyright; the latter can be protected. CBS argued that the techniques used to elicit a story out of contestants were protected expression, while ABC said that a whole host of shows, like “American Idol” and “The Voice,” follow the same generic formula and would be jeopardized by such reasoning.
ABC’s attorney, Glenn Pomerantz, said that CBS’s comparisons were trivial, and that the shows were different. “There is a core plot to ‘Big Brother’ and it is not the same as ‘Glass House,'” he said.
During the hearing, Feess was sometimes sarcastic as he talked of the world of reality TV, especially its propensity for imitation, and even quipped as he recalled his own prediction that the genre would not last.
“Boy was I wrong,” Feess said.
Given that proliferation, he also expressed doubts that there would be harm done to “Big Brother” by having “Glass House” go forward, although CBS claims that it could diminish the audience for its show.
Edelman said after the hearing that they were “disappointed,” but that they would continue to pursue their claim after the show airs, when the network will have more material from which to make their case.
“We are in it for the long haul,” he said, characterizing the case as an “interesting test for reality television” and the extent to which its intellectual property can be protected.