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.
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