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The Frivolous Copyright Claim CBS Brought against ABC Claiming “Glass House” Infringes “Big Brother.”

This morning, CBS filed a lawsuit against ABC and Disney claiming that their new show Glass House was a rip-off of Big Brother. The complaint (which can be found here) alleges that at least 19 former Big Brother staffers are working on glass house and includes causes of action for, among other things, trade secret misappropriation, unfair competition, breach of fiduciary duty, and conspiracy.  Now, I’m no expert in trade secret law, so I’m not a comment on that part of the complaint. But as a copyright lawyer, I feel the allegation of copyright infringement is completely ridiculous.

In the complaint, CBS lists the following elements which it alleges are protectable and were ripped off by ABC.

1. Big Brother is a reality television series in which a group of people live together in a large house, isolated from the outside world. The contestants are filmed continuously.

2. Each cycle of the series begins with between 12 and 14 contestants (referred to as houseguests). Over the course of three months, contestants survive periodic evictions. The last contestant standing wins.

3. Evictions occur approximately once per week. The contestant designated the “head of household” nominates a number of fellow contestants whom he or she wishes to see evicted from the house. The contestants then vote to evict each other, and the nominated contestant with the most votes is evicted (unless the contestant uses a “power of veto,” where a contestant can save the nominee, causing the head of household to name a replacement nominee).

4. After the votes are tallied, the quote you pick the unquote leaves the house and is interviewed live, usually in front of a studio audience.

5. The weekly tasks and competitions, which are set by Big Brother, are a major part of the contest. The tasks are designed to test their teamwork abilities and community spirit. Contestants who lose the tasks and competitions are often nominated to be evicted from the house.

6. Throughout the cycle, the contestants are filmed in the “Diary/Confession Room, where they individually convey their thoughts, feelings, and frustrations, and reveal their nominees for eviction.

Now, I don’t know about you, but when I look at this list, it reads almost exactly like a description of the show Survivor. Other than the fact that this takes place in a house and not on an island, and that the head of household nominates certain contestants to be evicted, everything listed can be found as part of the Survivor television program.  The rules of Big Brother are simply not specific enough, nor are they detailed enough, to justify a claim of copyright infringement, when someone puts on a similar show.

We will see how this plays out, but if I could place a bet on the outcome, I would bet a lot of money on ABC. Let’s see what happens.

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It seems like almost every day I get a call from someone asking me how they can protect their idea for a reality TV show.  So it seems like a good time to write a blog post giving some sort of answer. The short (and glib) answer is that you really can’t protect the idea for a reality show.  The reason being that ideas themselves are not protectable by copyright, only the expression of that idea.  For proof of this, you need only look at the similarity of reality shows that are already on the air.  Almost all of them fall into one of five categories.

1.  The Competition Show: Starting with American Idol, it includes America’s Got Talent, The X Factor, The Voice, Top Chef, Dancing with the Stars, Last Comic Standing, America’s Next Top Model, and Project Runway.  All of these shows have amateur contestants competing in various skills (singing, dancing, cooking, stand-up comedy, fashion), judges judging the outcome, and a weekly vote (by the judges or America) in which one contestant is sent packing.

2.  The Job Show: Cops, Million Dollar Matchmaker, Pawn Stars, Storage Wars, Ice Road Truckers, Ax Men, Sold.  Just pick a profession, and have camera’s follow people around doing their job.  Why they haven’t done a show about a charismatic copyright lawyer yet, I have no idea.

3.  The Fly On the Wall Show:  Get a group of people from the same or different socio-economic group together and watch the sparks fly.  Examples are Big Brother, Real World, The Surreal Life, Jersey Shore, Real Housewives of New Jersey, Teen Mom.

4.  The Celebrity Show: Pick a celebrity (or someone who thinks they are a celebrity) and follow them around.  Before the ever-present Kardashians, there were similar shows following Jessica Simpson, Brittney Spears, Hulk Hogan, Ozzie Osborne, Gene Simmons, Anna Nicole Smith and Hugh Hefner.

5.  The Looking for Love Show:  Besides the on-going Bachelor and Bachelorette, there was Flavor of Love, Rock of Love, and I Love New York on VH1 and Boy Meets Boy on Bravo.

So take a look at this list for a minute.  Don’t you think that if a format like American Idol was protectable, that Fox would do everything in its’ power to get The Voice and America’s Got Talent off the air?   And wouldn’t ABC have sued VHI for Flavor of Love if the idea behind The Bachelor was protectable?  Of course they would.  The fact that they haven’t should give you some indication as to their protectability.   So, if your idea falls into one of these categories, or if it is fairly similar to some other show but with a little twist, it’s really not protectable.

But does that mean that anyone can just steal my idea without paying me?

No.  But it means that in order to be able to prevail in a lawsuit, you better have something more than a one sentence log line.   There is a concept under California law called “idea misappropriation,” which basically says that if you pitch an idea to a production company, there may be an implied contract created in which it is agreed that you will be compensated if they use your concept.  The problem is that while the concept of idea misappropriation sounds good in theory, in practice these sorts of cases are very difficult and expensive to win.   And what you are really interested in is making sure your idea isn’t ripped off in the first place, so you get proper credit and compensation, not possibly winning an expensive lawsuit years in the future.

So how do I not get ripped off in the first place?

Ahh, that’s the $64,000 question.  Here are my suggestions.

First, if this is your first pitch, instead of going directly to a production company, think about partnering up with a more established producer.  Not Mark Burnett (or someone at his level) but someone smaller, who is willing to make a deal with you to share credit.

There are some good reasons for doing this. By teaming with an established producer, you lessen the chances that a production company will steal your idea. While a production company may not care about pissing you off, it’s going to be more careful about screwing over someone more established

Also, the established producer may be able to help you in improving your pitch. For beginners, it is sometimes difficult to understand all of the various elements that go into a successful reality show. A more experienced producer can help figure out potential problems with your concept, so you can make changes before you get into the pitch room.

Second, you can try getting an agent. Now I know that it’s difficult to find an agent, and no, I can’t recommend an agent for you. But if you can get one, especially one at a bigger agency, you stand less of a chance of being ripped off. Again, it’s not you the production company is worried about. But most of the major production companies have long-standing relationships with the bigger agencies, and those agencies did not want to lose their commission.

Third, you can hide your pitch in a drawer and never show it to anybody. Now I know this is ridiculous, but sometimes I hear from people who are so paralyzed with fear at the thought of having their idea ripped off, that they never share it with anyone in the first place. But at the end of the day, sometimes you just have to take the risk, put it out there, and see what happens.

Good luck!


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