CBS has aired the reality TV show Big Brother for 13 years. It’s set in a sound stage built to resemble a house, with 12-14 participants live in front of cameras that record everything that happens. Participants are eliminated through various means until the last one left wins some cash. ABC developed The Glass House, a competing show in a similar setting with a similar number of contestants and a similar motivation. “As with Big Brother, cameras will record the interaction among contestants in the hope that, once thrown together in close quarters with no escape, drama will ensue.”
CBS sued for copyright infringement and misappropriation of trade secrets. The court denied its motion for a TRO, concluding that CBS was unlikely to show that ABC copied protectable elements of Big Brother. In addition, the alleged trade secrets were already known in the business, easily reverse engineered, or not adequately protected as trade secrets.
CBS argued that the similarities between Big Brother and Glass House were unsurprising because ABC hired numerous former Big Brother staff to work on Glass House, including the Glass House showrunner (responsible for day-to-day operations). The showrunner admitted that he showed the Big Brother “Houseguest Manual,” a compilation of rules for Big Brother contestants, to a production coordinator on Glass House, and asked that its contents be re-typed and sent to in-house counsel at ABC. He also consulted consulted an old “Master Control Room” schedule for Big Brother when determining how many “story positions” he would need to hire for Glass House.
CBS contended that Big Brother’s unique success was substantially due to its schedule, which required “recording, editing, and broadcasting episodes during the competition,
within 48 hours of the events actually happening.” This quick turnaround depends on special filming, editing, and production techniques, including multiple production teams separately assigned to monitor major storylines and searchable databases that catalog all house activities; CBS argued that these were trade secrets.
The court turned first to the copyright claim. Access was clear, and given the similarity of the concepts, there was no doubt that some copying occurred. But the question was whether there was substantial similarity in protected elements. Citing Swirsky v. Carey, CBS argued for an “inverse ratio” rule that required less proof of substantial similarity when access is shown, but that’s a really bad idea. As the court noted, such a rule “stands logic on its head … [A]ccess says nothing about whether two works bear any similarity to each other which must be determined solely by a comparison of the elements of the two works.”
Copyright protects expression, not ideas, themes, concepts, or scenes a faire. Nor does it protect “hard work, industriousness, persistence, perseverance, tenacity or resourcefulness.” (Insert West Wing “you just said three things that all mean the same thing” reference here.) Nor, as §102(b) states, does it extend to any “procedure, process, system, [or] method of operation.”
The court began by identifying some of the last category, noting that CBS conflated the copyright and trade secret analysis in order to make the copyright argument appear stronger. CBS identified various procedures, processes and techniques it used to create Big Brother that it argued were protectable by copyright, including: (1) the number and placement of cameras used to record the activities of the “cast” of the show; (2) the fact that the video streams live to the internet; (3) the fact that contestants are housebound for some or all of the period during which the show is shot; (4) the timing and scope of the post-production work; (5) the fact that the post-production does or does not involve editing of content; (6) the fact that shows commence airing before the final episode has been shot; (7) the size of the production crew and the array of positions that are held by crew members. “While these various procedures and processes may ultimately have an impact on the expressive elements of the show, 17 U.S.C. § 102(b) establishes that they are not within the ambit of copyright protection.” The court therefore disregarded them.
So what was the expression of Big Brother? “CBS has attempted to fit the reality show square peg into the fictional round hole.” It argued that there were similarities in “plot, themes, dialogue, mood, setting, pace, characters, and sequences of events” between the two shows, but “Big Brother does not, as a concept, readily exhibit any of these elements.” Rather, “the ‘drama’ that occurs in the voyeuristic variant of reality television develops, by design, in an unpredictable way. Until the cameras begin to record, there is no plot, there is no dialog, there is no pace or sequence of events, and there are no fixed characters because there is no author. There is a setting, which is hardly novel, and some general ideas regarding the structure of the show, but little else.”
CBS was really trying to claim copyright in a format or template:
a voyeuristic reality show involving a group of 12 to 14 participants who compete for a grand prize while being subjected to round-the-clock observation while locked in a sound stage designed to give the appearance of a house. To avoid the risk that the interactions among the participants becomes boring and uninteresting, the participants are given periodic challenges that earn privileges or cost them sanctions and, hopefully, create plot elements. As the season wears on, the drama intensifies as participants are voted off (“evicted”) by the other contestants until only one is left and declared the winner.
This it could not do. While the concept was more concrete than the broad abstraction “reality show,” it was still quite general and made of unprotectable elements. A shared “voyeuristic” feel and “unscripted” character weren’t concrete expressive elements. Nor were the components new or unique. “[A]ccording to some sources, the idea of a voyeuristic television program depicting strangers thrown together in the same environment for an extended period of time while their interactions were recorded was pioneered in the 1991 Dutch television series ‘Nummer 28,’” then extended in MTV’s The Real World. No prior show in the record kept the contestants housebound, “but that is more a procedure employed to induce interesting behavior than an
element of expression in and of itself.” And most reality shows involve a contest for a grand prize; smaller competions along the way are a staple of reality programming “for obvious reasons – competition creates conflict; conflict creates drama; and drama (hopefully) creates interest, viewers and revenue.” Competition and the risk of expulsion “are the life blood of reality programming.”
CBS’s expert argued that the “characters” were of “varied gender, age, and ethnicity.” The court thought that they were people, not distinctly delineated characters deserving copyright protection. The expert opined that some were “natural leaders and others . . . are natural whiners.” The court was dubious: “Well, maybe it will work out that way, but no one can say for sure until the door closes, the cameras are turned on, and the producers watch to see what develops. Moreover, the presence of leaders, followers and whiners is hardly an idea that would warrant copyright protection.” The expert surmised that episodes would be about trust, betrayal, ambition, disappointment, bonding, competitiveness, and affection.” The court: “But saying that is to say that anything can happen, and themes that are common to all literature for all time may arise during recording.”
CBS’s expert’s own language suggested dissimilarity: the characters were “varied,” the dialogue “improvised,” and, “most tellingly, the shows are aimed at eliciting nearly every human emotion that one might expect to find in anything resembling the dramatic arts.” These were all generic tropes. True, structural features gave rise to similarities—contestants on Glass House played kitchen bowling like those on Big Brother, but that real people found kitchen bowling worthwhile while they were locked up didn’t make the two works substantially similar. (Interesting issue here about people playing out very specific cultural scripts they’ve picked up from existing reality TV. See I’m not here to make friends. Hmm, I wonder if you could get the cameras off you in one of these shows by speaking only in extended movie quotes and making the studio’s lawyers nervous?)
Courts dealing with reality show formats have unanimously denied copyright protection to them. The court cited Survivor v. I’m a Celebrity, Get Me out of Here!, The Apprentice v. C.E.O., Rachael Ray v. Showbiz Chefs, and The Biggest Loser v. a prior treatment. Even taking all the shared elements together, there wasn’t substantial similarity. CBS argued that the key expressive features of Big Brother were “an unscripted house reality competition show whose voyeuristic feel depends on minimal interaction between cast and production, and viewer and production.” But that didn’t identify any concrete, discernible and protectable plot, themes, or dialogue. It’s not the case that any combination of unprotectable elements automatically qualifies for copyright protection. (Or more precisely, CBS can get a copyright in its film of the Big Brother contestants interacting, and even its selection, coordination and arrangement of the film, but none of that gives it any rights to stop someone else from taking the same ideas and making their own film.) It was reality TV’s “very aspiration towards the ‘real’” that doomed attempts to copyright reality TV concepts. No matter how similarly contestants are selected or even forced to sleep, “the fundamental premise is to let ‘reality’ play its course.” There’s no plot as the term is normally used in copyright cases. Any “plot” emerges from the interaction of the contestants with the structure as the contestants begin to reveal their characters and assume specific roles.
Two asides: (1) This sounds a bit like a video game; the video game designer may or may not have a lot more control over how the story develops. (2) I’m very interested in the concepts of “reality” suggested by these two phrases—people “reveal their characters” as if that were a fixed thing unrelated to circumstance, which is fundamental attribution error; but people may well “assume specific roles” because those roles are elicited from them, not least by their and others’ expectations about how people in X circumstance behave—often modified by demographic characteristics.
In any event, CBS’s ads touted Big Brother for these very emergent features, and the court found the ads more instructive than the legal argument. “‘Reality,’ it turns out, is hard to copy.”
The court then turned to the trade secret claims. Neither the Big Brother master control room schedule or House Guest manual, the two documents admittedly consulted by the showrunner, appeared to contain information that derived independent economic value from not being generally known to the public. Even if such generic instructions could constitute trade secrets, it turns out that various versions of the House Guest manual are online, revealing many of the same instructions. And the showrunner testified that he didn’t use the CBS schedule, “at least in the sense relevant to that document’s unique economic value, as his hiring practices revolved almost exclusively around budgetary considerations.” “[T]he haphazard use of two generic documents” didn’t merit an injunction.
As for the remaining techniques, the court didn’t find either ownership or misappropriation. Similar techniques are common for reality TV. Nor did CBS show that Glass House actually used CBS’s procedures, citing only indirect evidence like media accounts calling Glass House a knockoff and Glass House’s hiring of Big Brother staffers. This was plainly insufficient, especially given California’s public policy favoring employee mobility and freedom to use experience gained in prior employment.
For belt and suspenders, the court went on to find that even if CBS had shown likely success on the merits, it still wouldn’t be entitled to an injunction. Irreparable harm isn’t presumed in copyright cases any more. There was no evidence that Glass House “would in any way dull viewers’ appetites for Big Brother or similar reality television programs.” Nor would loss of viewership be irreparable: CBS didn’t show that it couldn’t be compensated in money.
Furthermore, the balance of hardships tipped in defendants’ favor. An injunction would disrupt the employment of more than 100 employees working on the show, as well as the contestants, who gave up their own employment opportunities to participate. Defendants’ $20 million investment in Glass House would be rendered almost worthless.