David R. Ginsburg: Reality Television and the Limitations of Copyright

Recent weeks have seen much entertainment industry and legal attention to an aggressive dispute between two networks over a pair of "reality" television shows. CBS has broadcast Big Brother in the United States since 2000, and it got wind of a prospective but as-yet uncompleted show entitled The Glass House it believed ABC was developing for a June 18, 2012 debut. In general, both shows involve a group of people living together in a house, sequestered from the outside world, continuously monitored by numerous television cameras, and on both shows contestants are eliminated over a respective season until there is a prize winner. In May, after warning ABC not to proceed, CBS filed a lawsuit in federal court, alleging copyright infringement, trade secret misappropriation, unfair competition, and various other breaches and wrongdoing. CBS vested particular ire in the claim that several former Big Brother employees had been engaged to work on ABC's show, though the conflation of that part of the complaint with the copyright count underplayed the separable nature of the alleged breach of employment obligations and any potential infringement by the ABC show as it might be finally produced.

On June 15, the presiding judge announced that, in accordance with relevant precedent, he was inclined to deny CBS' request for a temporary restraining order to halt ABC's airing of its show, which, in fact, proceeded as scheduled. CBS appeared so frustrated at the foregoing that it issued a press release sarcastically announcing two imaginary shows, Dancing On the Stars and Postmodern Family, both mocking current ABC properties. On June 21, the matter interimly culminated when the judge issued a detailed civil minute opinion finding that CBS was unlikely to prevail on the merits, that it had failed to demonstrate entitlement to the relief it sought, and denying an order to show cause for a preliminary injunction. My instinct, however, is that CBS is too astute and is too well-represented not to have expected the court's reasoning and these results. If so, what motivates the relentless attempts by reality TV plaintiffs to seek injunctive and damage relief that courts are simply not granting?

There can be no doubt that, in the mind of the public, the industry press and blogosphere, and, often, even in the words of plaintiff's learned counsel in this kind of case, the second and subsequent shows in what is a typical cycle of seriatim reality programs with a similar premise -- without any aspersions cast, think of American Idol, America's Got Talent, and The Voice, or Pawn Stars and Hardcore Pawn, or any reality show about finding, buying, selling, or remodeling a house -- inevitably provoke pejorative rubrics such as "copycat" and "knock-off" despite the absence of meaningful judicial concurrence. The simple problem faced by irked plaintiffs searching for a way to prohibit subsequent reality TV shows of similar content, however, is that American copyright law was neither Constitutionally conceived nor legislatively drafted to prohibit that sort of "copying". Indeed, it was designed to permit it. The operative principle is that copyright law does not protect basic ideas -- that is, say, a show featuring a talent competition or the activities in a pawn shop -- but, rather, only the original and concrete expression of such ideas. The difference is embodied in a doctrine called the "idea-expression dichotomy", and while a precise, one-size-fits-all definition of the idea-expression boundary has always been elusive, for our purposes a progression from abstraction to concreteness in detail is helpful and illustrative. To violate an author's valid copyright, it is thus not enough that another work comprises merely similar ideas, or even that its ideas were, as commonly understood, "copied". The standard instead is one the courts call substantial similarity, which evidences a significantly higher coincidence of shared expressive content.

The dimensions of comparison in substantial similarity analysis may include plot, characters, dialogue, sequence of events, setting, tone, and theme, which the works in question must be demonstrated to share as concrete expression to a high degree. Some plaintiffs, seemingly aware that they can adduce only scant similarities among the above touchstones, also rely on a stopgap claim of "compilation", alleging that facts or ideas are collated or ordered in a similar way. The Supreme Court has ruled, however, that a compilation- based copyright is on narrow grounds, or "thin", such that the infringement must be virtually identical, a level beyond substantial similarity. Moreover, there are certain classes of similarities, however, even if present, that cannot form the basis for a finding of substantial similarity between two works if they constitute one or more of the following: a mere inexpressive idea, fact, or concept; predictable stock content common to a genre; material found in third-party works extant prior to the plaintiff's creation; a taking considered a "fair use" for legal and policy reasons; or material already in the public domain. Applying the above generally, while copyright law would not protect the bare idea for a movie with an abstract, archetype lawman, a bad guy, and a shootout, it would much more likely protect the aggregate, concretely described and expressive lawman, bad guy, and shootout elements of, say, High Noon or Die Hard.

The courts have extended to reality television the same copyright principles and standards as were developed primarily in the fictional or dramatic context. In a line of cases dating back to -- guess what? -- the 2003 prior match where CBS lost its claim that ABC's I'm a Celebrity, Get Me Out of Here! infringed Survivor, courts that decided the matter have declined relief to reality TV plaintiffs, largely on the basis that the defendants' shows simply shared ideas or stock elements. The actual progression of incident, the concrete specifics of the "characters" (the hosts, announcers, contestants, coaches, and other participants), the words they uttered, and the expressive content, design, and detail of the setting, all taken together, were quite different where the law demands that they be quite -- or "substantially" -- similar, and even where they shared certain similar ideas.

Were the governing copyright principles to be otherwise, then, for example, the first talk show featuring an announcer, a live band, a stand-up comedian host, a raised stage arranged with a guest couch and the host's desk, silly games played with audience participation, two celebrity guests, and a concluding musical act could purport to secure an exclusive copyright to the above as against subsequent talk shows with the listed similarities, an intuitively absurd result, and one contrary to sound policy. The same could be said of two classic situation comedies, I Love Lucy and The Dick Van Dyke Show, where both shows feature a family which includes a father in show business, a housewife mother, a son named Ricky or Ritchie, set principally in the family's living room and the father's workplace, where the family closely interacts with its immediate neighbors who often drop in unannounced, and where the mother's antics often get her in trouble with her husband. Once again, the two shows are not substantially similar because they only share the commonality of the above abstract ideas, not their expression, which lies in the concrete realization of those ideas, and which, compared show-to-show and episode-to-episode, differed fundamentally as to story, more specific character details, and so on. Had the above or comparable lists of idea similarities been exclusively protected at the dawn of talk shows or situation comedies, the development of entire genres of television and those who work in them might have been impermissibly curtailed.

Litigants would be well-served to think of copyright protection as a cordon sanitaire of expression within which proprietors enjoy defined and exclusive rights for limited times, but beyond which other creators are free to use more general ideas, concepts, and certain other content. As the Ninth Circuit federal appellate court (which includes California) enunciated in Satava v. Lowry, Congress

granted artists the exclusive right to the original expression in their works, thereby giving them a financial incentive to create works to enrich our culture. But it denied artists the exclusive right to ideas and standard elements in their works, thereby preventing them from monopolizing what rightfully belongs to the public.

And because of that, people in The Glass House may throw stones.

David R. Ginsburg is the executive director of the Entertainment, Media, and Intellectual Property Law Program at the UCLA School of Law, where he is also a lecturer. He frequently acts as an expert witness in entertainment litigation, and he has done so on behalf of both CBS and ABC in the past, though he is not involved in the present case.

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