Tuesday, 3 July 2012

People who live in glass houses shouldn't throw stones

A recent judge's opinion in the acrimonious dispute between US television broadcasters CBS and ABC indicates that CBS is unlikely to be able to prevent ABC from continuing to air its new reality TV show The Glass House. This raises the question of how television show formats are protected, and whether similar litigation in the UK would have the same outcome.

CBS, which has been broadcasting reality TV show Big Brother in the United States since 2000, recently found out that ABC was developing a very similar show called The Glass House, due to be launched on 18 June. The similarities between the shows are obvious: both involve a group of people living together, under the scrutiny of television cameras (and therefore the public), with no outside contact. In both the contestants are voted off the show over time, with the last person left in the house being the "winner".
CBS warned ABC not to proceed with The Glass House. It received no response so in May CBS issued a federal court claim against ABC for, amongst other things, copyright infringement, trade secret misappropriation and unfair competition.

On 15 June the court denied CBS a temporary restraining order over ABC to prevent The Glass House from being broadcast.  
 (c) Nuno Cardoso
CBS then issued a tongue-in-cheek press release, which you are encouraged to read at your leisure, in which it referred to two imaginary shows, "Dancing On the Stars" and "Postmodern Family", poking fun at ABC's other well-known TV shows.
On 21 June the judge handed down a detailed civil minute opinion, in which he found that CBS was unlikely to prevail on the merits, that it had failed to demonstrate entitlement to the relief it sought, and denying an order to show cause for a preliminary injunction.


David Ginsburg, Executive Director of UCLA School of Law’s Entertainment, Media, and Intellectual Property Law department said in the Huffington Post that:
"CBS is too astute and is too well-represented not to have expected the court's reasoning and these results. If so, what motivates the relentless attempts by reality TV plaintiffs to seek injunctive and damage relief that courts are simply not granting?"
It is this blogger's guess that publicity may have motivated this particular attempt, or a desire to prevent a third party from benefiting from a revived version of slightly tired TV format. Whatever the motivation, CBS has failed to prevent ABC from launching The Glass House, and is unlikely to get any damages or other remedy in court.

The question arises therefore: what can be protected? The plethora of talent contest shows (X Factor, The Voice, American Idol, America's/Britain's Got Talent) which have nearly identical formats indicates that not much can be protected. Consider however game shows such as Who Wants To Be A Millionaire? The format is no more complex than can be found in other shows, however the franchise is the most internationally popular TV franchise of all time, having aired in more than 100 countries worldwide. Broadcasters must be paying for something more than trade marks, they must be buying the right to use the format, implying that it is in some way protected.
What is protected boils down to the idea/expression dichotomy. Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPS Agreement both provide that copyright protection extends to expressions of ideas but not to ideas themselves. This means that the concept of a reality TV show where contestants live in a house being filmed 24 hours a day cannot be protected by copyright, whereas the film made of them by the production team can. 

Under US law CBS would have to show that The Glass House is substantially similar to Big Brother, a standard which requires a high coincidence of shared expressive content. Had the case been brought in the UK CBS would have to show that a substantial part of Big Brother had been taken and reproduced in The Glass House. The courts would have considered whether The Glass House was original in its own right. Case law indicates that English law is line with the US (for example Meakin v BBC& Others [2010] EWHC 2065 (Ch)), i.e. that TV formats are not protected.
However one should consider the implications of the recent "red bus case" in which the Patents County Court held that a recreation of a photograph of a red bus, going over Westminster Bridge, against a monochrome background, infringed copyright in a similar earlier photo. Based on that logic it is very possible that, if the shows were sufficiently similar, CBS's claim might have succeeded in the UK.

Format rights are big business in all countries, so it seems logical that they should be protected. Perhaps the red bus case might give Channel 5 a leg to stand on should The Glass House come to the UK.

3 comments:

Andy J said...

A number of interesting points arise from this case. First of all I'm unclear how CBS claimed to have standing to bring this case, as the US Big Brother is produced by Endemol USA, with CBS being just the broadcaster.
Endemol's Dutch based parent company of course owns the Big Brother format which it has successfully produced or sold licenses to in at least 23 countries. And they have previously been successful in the courts in protecting their format for example in Malta and Brazil (although the latter case was heard in the Netherlands).
But not all jurisdictions are as easily convinced about the copyright in a format, as the Hughie Green case showed back in 1989 (Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056) (pdf).
The TV industry has tried to bolster the protection for formats by setting up FRAPA.

Iona Harding said...

The Hollywood Reporter has made a copy of the Order available at:

www.hollywoodreporter.com/sites/default/.../Order.pdf

There is no mention of Endemol so I can only assume that they contractually granted CBS the right to sue.

The parties have now moved on to arguing about dating shows "The Bachelorette" and "3" - watch this space!

Iona Harding said...

An update on this case: despite the judge's order in July refusing to grant an injunction, CBS presses ahead. It has just filed an amended claim, still for copyright infringement and misappropriation of trade secrets, and now includes a further 10 paragraphs setting out the "similarities" in plot, characters, themes, mood, dialogue, setting, pace and sequence of events. Watch this space.