Life in a Glass House, ABC’s forthcoming reality show that is noticeably reminiscent of CBS’ Big Brother, is poised to air in a number of weeks, irrespective of the vigorous legal efforts on the behalf of CBS to suppress its release.
CBS is contending that Life in a Glass House is substantially and strikingly similar to its long-running and widely known series entitled Big Brother. Both series subject twelve to fourteen individuals to continuous observation, in an isolated house, rife with cameras and microphones, for the purpose of attaining a monetary grand prize. Contestants are required to survive periodic evictions and the last contestant remaining wins. Interactive features enable viewers to participate in the show. Perhaps even more troubling is the fact that Life in a Glass House is being produced by a team of at least 18 former employees of the Big Brother production staff – all of whom were privy to confidential information and trade secrets, and signed broad non-disclosure agreements in association with Big Brother. In a nutshell, the lawsuit filed by CBS alleges that ABC is in contravention of its copyright in Big Brother, induced the breach of non-disclosure agreements and misappropriated trade secrets.
The series of legal efforts deployed by CBS commenced with a failed cease and desist order, urging ABC to halt production of the show. More recently, CBS has filed a temporary restraining order in an attempt to stifle the show’s June 18th release date. In response, ABC has requested that the motion not be heard until after the premiere of the show, as roughly 140 employees risk termination if the motion succeeds.
Although perspectives on the matter are polarized, history reveals the court’s reluctance towards awarding a monopoly in the idea or format behind various reality television shows. For instance, a lawsuit filed in 2003 by CBS against ABC – in reference to the uncanny resemblance between I’m a Celebrity, Get Me Out of Here and CBS’ Survivor, resulted in the Court applying copyright analysis to determine that although similar in premise, there was no substantial similarity in the execution of the two shows. David Ginsburg, the executive director of UCLA’s Entertainment and Media Law and Policy Program stated that the Court’s rendering has made it difficult for reality shows to be deemed substantially similar once various touchstones have been incorporated to its format. Generic elements that naturally emanate from a particular idea are inherent in the premise of much reality television and are generally not protectable. In the context of the current proceedings, the idea or concept of having contestants residing in a house, wired with cameras and microphones while competing for a prize is a relatively ubiquitous and commonplace touchstone of numerous reality television shows. Therefore, it has become increasingly difficult to copyright such content. In light of this information, ABC released a statement asserting that the lawsuit is a “a naked attempt by CBS to stifle competition and creativity by claiming that reality techniques that have been developed over many years, on many shows by countless producers, are somehow exclusive to CBS.”
Conversely, a compelling argument may be advanced on the behalf of CBS in the claim that the execution or expression of Life in a Glass House is substantially similar to Big Brother, or that the sequence and arrangement of uncopyrightable ideas rises to the level of a copyrightable sequence. In order to successfully advance this position, CBS must demonstrate that: the technical set-up of a house wired with video and audio feeds; the process of editing and manipulating the 24-hour live feed into a linear narrative; the design and implementation of contestant challenges; and the user interactivity, is either original expression or amounts to a copyrightable sequence. Although such may not be a simple task to conquer, claims pertaining to the violation of non-disclosure agreements and the release of trade secrets may prove surmountable, if it can be shown that certain elements of Big Brother are not readily ascertainable from merely viewing the show.
ABC and CBS seemingly face a tumultuous legal battle; nonetheless, compelling arguments can be made for both sides and it will be interesting to see if and how this case will affect the copyrightability of reality television.
Tracy Ayodele is a JD Candidate at Osgoode Hall Law School.