ABC/CBS CASE UNDERLINES NEED FOR SUITE OF LEGAL PROTECTION29 August 2012

David Lyle: “The truth is that knock-offs rarely work”

THE NEWS in mid-August that CBS has dropped its Glass House copyright infringement case against ABC, referencing the reality show’s dismal ratings as the reason, comes as no surprise to FRAPA co-founder and reality pioneer David Lyle.
“In the end, the greatest protection against piracy we have is that unpredictable crowd we call the audience,” says Lyle, CEO of National Geographic Television. “The truth is that knock-offs rarely work. So in the end, when the laws of copyright, unfair business practice and breach of confidence have let you down, there’s a very good chance the audience will say, ‘We don’t want to watch this. We’ve seen it all before’.”
In the statement announcing its decision, CBS said: “The viewers have spoken and delivered the ultimate form of justice against The Glass House.” The Big Brother network added, however, that it would continue to pursue its contract and trade-secrets claims against former Big Brother employees in arbitration. The statement concluded: “We reserve the right to re-file this claim against ABC/The Glass House, or any other entity, that goes to such shocking lengths to duplicate our copyright material.”
However, the damage done to the formats industry by the case is far from over, Lyle believes. CBS originally filed to stop ABC airing The Glass House in June, claiming the format — in which strangers live together and compete for a cash prize — was a rip-off of reality superformat Big Brother.
Judge Gary Allen Feess of the United States District Court of California disagreed, rejecting CBS’ request for an emergency restraining order — and, in the process casting doubt on the fundamental premise of reality TV. “That was certainly a black day for formats,” Lyle says.
In his ruling, Feess said: “This very aspiration towards the ‘real’ […] has plagued other attempts to protect reality television concepts from infringement and […] dooms CBS’s attempt to enforce copyright interests in Big Brother. Although the parties speak of the shows as highly contrived in everything from the selection of contestants to the manner in which characters are forced to sleep, the fundamental premise is to let ‘reality’ play its course. […] ‘Reality’, it turns out, is hard to copy.”
“This is where Feess and I disagree,” Lyle continues. “Reality shows set up a maze of structures and rules that guide real people to act in a number of different ways. It is this structure that determines how the narrative will unfold — and this is what Judge Feess rejects when he says, ‘reality will play its course’.”
Feess’ contention that CBS attempted “to fit the reality show square peg into the fictional round hole” misses the point, Lyle maintains: “He’s applying a drama definition to reality when he says Big Brother has no plot, dialogue, characters or sequence of events. I’ve always said judges don’t watch enough TV. And it’s interesting, too, that once more the word ‘reality’ does the formats industry a disservice.”
Lyle professes himself to be “stunned” by the ramifications of ABC’s legal victory, observing that it’s a sad day when a legal challenge involving two formats succeeds in undercutting the very concept of format protection itself. “The people from CBS went into that court with Big Brother — one of the big daddies of reality television — only to come out with the judge saying it wasn’t worthy of copyright protection and that, effectively, the format doesn’t exist.”
He stresses, however, that Feess’ decision only applies to one jurisdiction and that many other territories in Latin America and Europe take a very different view of reality’s right to be adequately protected under law.
And there is another “faint glimmer at the end of the dark copyright tunnel”, Lyle believes. While the CBS/ABC run-in has demonstrated once again that reality shows continue to be tricky entities to protect under copyright law, format creators are enjoying increasing success in cases of unfair competition, unfair business practices and breach of confidence. Indeed, this was the central finding of the FRAPA Report 2011: Protecting Format Rights, which surveyed 14 territories and 43 judgements to conclude that the more law, the better should your format become the subject of a plagiarism dispute.

Joanna Stephens