In Reality, It’s Not Protectable

In a case involving the "Big Brother" television series, as in life, "reality" doesn't lend itself to copyright protection.

(Originally published in the Entertainment Law column in the New York Law Journal on Friday, October 26, 2012)

The nature of reality has bedeviled scientists, philosophers, and theologians for millennia.  The nature of reality television programs, however, is a relatively modern concern, and – like reality itself – doesn’t lend itself well to copyright protection.

The biggest obstacles to protection under copyright are these:  First, reality programs do not exhibit pre-ordained elements like plot, themes, mood, setting, pace, characters and sequences of events.  Second, the basic elements of reality shows, such as a contrived environment, dynamic participants, competitions, elimination rounds, prizes, and a story that unfolds without a script, are commonplace and unprotectable. Third, the overlay of a particular context in which these elements play out  – such as a corporate hierarchy, a jungle, a gym, or a houseful of young roommates – is merely a concept and for that reason, not protectable under copyright, either. 

In a number of California cases over the last decade, courts have addressed these issues with dismal results for plaintiffs complaining of infringement.  The most recent, CBS Broadcasting, Inc. v. American Broadcasting Companies, Inc. et al.[1]involved CBS’s 12-year old “Big Brother” and ABC’s new series, “The Glass House.”  The case received a good deal of publicity in the early summer when CBS sought a temporary restraining order to stop ABC from broadcasting its first episode.  CBS drew attention not only to the shows’ striking similarities, but also to the alleged use of secret “Big Brother” production techniques by key creative personnel who allegedly were “poached” from the earlier show’s production team. 

The District Court, however, seemed to have little difficulty denying CBS’s motion.  It concluded, “No court has upheld a copyright claim seeking to protect the skeletal features of a ‘reality television’ show, and the Court finds nothing in the current record that would justify breaking new ground in that regard.”  CBS subsequently withdrew the action without prejudice.

We will review here in further detail how the court reached that conclusion as well as some earlier reality show decisions on which the “Big Brother” decision relied. 

The Two Shows

In CBS’s “Big Brother,” 12 to 14 participants live on a “soundstage constructed to resemble a house” in full view of cameras placed in every room that operate day and night.  Each participant tries to outlast the others in weekly eliminations and the last person remaining wins a cash prize.  There are no scripted characters, plot, dialogue or sequence of events.  Instead the “drama” arises from “the extemporaneous interaction among contestants” as they try to avoid eviction.  According to CBS, the premise was “unlike anything else on television” as viewers could watch “the unscripted interaction of its cast members… [and] how contestants interact, strategize, and ally with one another in pressure-filled competitions and evictions, all while… physically sealed off from the outside world and unhindered in how they act toward each other…”  

ABC’s “The Glass House” has the same number of contestants living together in a house, “where they will be filmed around the clock engaging in activities and competitions.”  They are also motivated to win a cash prize by being the last contestant in the house at the end of the season.  Cameras record the participants’ interactions, as the court observed, “in the hope that, once thrown together in close quarters with no escape, drama will ensue.”  Unlike “Big Brother,” except for its first season, viewers of “The Glass House” can influence which contestants are eliminated 

Approximately two dozen of the staff members of “Glass House” formerly worked on “Big Brother” including the “show runner,” the person responsible for day-to-day operation of the series.  He admitted that he showed a compilation of rules for contestants on “Big Brother” to a production coordinator on “Glass House” and asked that its contents be shared with ABC’s in-house counsel.  He also consulted an old “Master Control Room” schedule for “Big Brother” when making plans for “Glass House.” CBS claimed that the “myriad similarities” between the two programs coupled with the defendants’ access to the “Big Brother” source material demonstrated “a likelihood of copyright infringement,” and that the poaching of numerous “Big Brother” employees and use of the proprietary production techniques that they brought with them, made the defendants liable for misappropriation of trade secrets, too.

What trade secrets?  CBS alleged that the “unique success” of its program was due to a “broadcast schedule” that involved the preparation of episodes within 48 hours of the events that happened.  The rapid turnaround was alleged to be made possible by a number of “filming, editing and production techniques” such as the use of multiple production teams, coordination between editors and story producers, and the cataloging in searchable databases of events occurring in the house.

The Court’s Analysis

The parties did not dispute that CBS owned a valid copyright or that ABC’s program was similar to “Big Brother” in certain respects.  Instead, CBS’s claim turned on its ability to demonstrate that ABC’s “Glass House” contains sufficient protectableelements of “Big Brother” to establish substantial similarity. 

The “substantial similarity” test in the Ninth Circuit has both an “extrinsic” part and an “intrinsic” part, both of which must be satisfied.  The intrinsic component, which is ordinarily the province of the jury, focuses on “whether the ordinary, reasonable audience” would find the works substantially similar in their total “concept and feel.”  The extrinsic part, which can be applied by a court, is a measure of the “typical objective features”[2] between the plots, themes, dialog, mood, setting, pace, characters and sequence of events.  

As the court observed, “copyright law does not protect abstract ideas but rather the concrete expression of those ideas.”  Nor does copyright protection extend to general plot ideas and elements that flow naturally from basic plot premises — known asscenes a faire — or to any “procedure, process, system, [or] method of operation.” Copyright law does protect, on the other hand, “specific details of an author’s rendering of ideas or ‘the actual concrete elements that make up the total sequence of events and the relationships between the major characters’.”[3]  If the alleged infringing work has only appropriated “an abstraction such as generalized themes, ideas and concepts,” then there’s no liability.  But if it contains something that is “more concrete that reflects the creator’s particularized expression of the underlying ideas,” infringement may be found.

The court next filtered out of the plaintiff’s claim the unprotectable processes and procedures in “Big Brother.”  These included the number and placement of cameras, the fact that the video is streamed live to the internet, the fact that contestants are housebound, the timing and scope of post-production and the size of the production crew.  In the court’s view, CBS’s emphasis on such elements “conflated the copyright and trade secret analysis, in part … to make the copyright argument appear more substantial than an argument focusing only on the properly considered elements,”  and the court rejected that attempt.  (The evidence also indicated that the “alleged trade secrets either were already known in the business”  such as banks of monitors in multi-camera productions,  or “were readily capable of ‘reverse engineering'” such as camera angles, or were not adequately protected as trade secrets, such as tours of the Master Control Room.) 

To determine whether or not “Big Brother” contained “expressive elements” that were capable of protection under copyright, the court considered the nature of reality television itself: its “voyeuristic” essence that develops the “drama” in an unpredictable way.  In the case of “Big Brother,” “[u]ntil the cameras begin to record, there is no plot, there is no dialog, there is no case 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.”  Once the non-protectable elements were eliminated, CBS’s argument was reduced to a claim of copyright “in the format and template that underlies ‘Big Brother.'”

Did that format contain “a sufficient number of concrete, expressive elements to merit copyright protection?”  Or was it merely “an idea or abstract concept”?  The court’s answers to both questions disfavored CBS: the concept of “Big Brother” was “quite general” and “in any event consists of unprotectable elements.”  Merely emphasizing — as CBS did — that the two shows had a “voyeuristic” feel and “‘unscripted’ character” fell short of establishing “any concrete expressive elements, let alone any protectable elements.” 

The court also observed that many components of the “Big Brother” format were neither new nor unique.  Earlier programs that recorded interactions among strangers thrown together in the same environment included a 1991 Dutch television series called “Nummer 28,” and MTV’s “The Real World” which in turn was an “outgrowth” of “American Family.”  The contestants might not have been housebound in those earlier series, but that distinction was considered “more a procedure employed to induce interesting behavior than an element of expression.”  The court also found that the idea of a contest with “lesser events and competitions” was a staple of reality programming.  In fact, this “contest structure” substitutes for a plot “as the participants through the dynamic of the [show] reveal their character and begin to assume specific roles.”[4]

Other “Reality” Cases

The “Big Brother” decision followed a pattern set by several other relatively recent federal court decisions in California in which infringement claims relating to reality shows were rejected notwithstanding a significant degree of similarity between shows.  Unlike the “Big Brother” case in which the two series in issue were in production, in each of these cases, the plaintiff had submitted a mere treatment that was rejected and then allegedly infringed by a television show produced by defendants.  In each instance, the plaintiffs’ copyright claims were dismissed on the defendants’ motions at least in part because of the plaintiffs’ failure to show substantial similarity between protectable elements.

In a 2005 case[5] involving the show “The Apprentice,” the court found “some similarity” with the plaintiffs’ show, such as the fact that the “plot” of each involved a “group of dynamic contestants from varied backgrounds competing in business challenges in a dynamic corporate environment for promotions and benefits and, ultimately, a real job as a top-level executive of a corporation.”  But in the court’s view, “concrete and protectable expressions” were lacking and the similarity between programs was “nothing more than a string of generic ‘ideas'” which “remain forever the common property of artistic mankind.” 

In a 2007 case[6] involving the show “Rachael Ray,” a series featuring conversation, cooking, and visiting homes of celebrities, the court took judicial notice that the following elements of a television show are “common and prevalent”: (a) a host; (b) guest celebrities, (c) an interview; and (d) a cooking segment.  Along with “a tour of the celebrity’s home,” all of these elements were deemed scenes a faire that flowed from the format and were unprotectable. 

And in a 2008 case[7] involving the show “The Biggest Loser,” both programs in issue featured overweight competitors trying to lose weight under the strict tutelage of trainers. Applying the “extrinsic” test, the court concluded that commonplace ideas in the plaintiff’s treatment – like a competition or game, contestants, rewards and prizes, exercise and fitness activities, discussions of healthy eating and weigh-ins – were as unprotectable as a plot that developed “entirely through the dynamic interaction of the contestants.”  Further, the idea of a reality show set in the context of a weight-loss program wasn’t new.

Conclusion

The fundamental premise of reality programming — “to let ‘reality’ play its course” – seems to lie at the root of CBS’s defeat.  In the words of the court, an “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.”  The court also observed that in an environment where “anything can happen,” the resulting themes “are common to all literature for all time.”