Reality TV Shows Difficult Concepts To Protect

In the superheated competition of reality television programming, ownership of ideas is increasingly being disputed. For example, the legal battle between reality TV boxing shows “The Contender” and “The Next Great Champ” has proved to be more of a slugfest than anything going on in the ring. Household names from sports and entertainment – Oscar De La Hoya and Sylvester Stallone ' lined up on each side. Fox Broadcasting Co. produced “The Next Great Champ” and its opponent DreamWorks produced “The Contender” for NBC. Contender Partners LLC v. Fox Broadcasting Co., SC082599 (L.A. Super. Ct.). At the heart of the dispute has been the simple idea about boxers who compete in some fashion, with one man left standing at the season finale.

Allegations of idea theft will likely increase as the number of reality TV shows expands and the realm of truly novel ideas shrinks. Resolution of these cases could set new standards for ownership of ideas and the best ways of protecting those rights.

In fact, since the new wave of reality TV exploded on to the airwaves with “Survivor” in the summer of 2000, there has been a rash of lawsuits. They come in varying and sometimes unusual forms ' everything from injuries during filming, to people who are dragged unwillingly into hidden-camera shows and lawsuits alleging that programs were rigged and people were cheated out of prizes.

The most significant claims have been over intellectual property rights ' primarily idea and format theft. Just about all of these lawsuits involve the big television networks on one side or another, or both. CBS sued ABC alleging “I'm a Celebrity, Get Me Out of Here!” was too much of a rip-off of “Survivor.” CBS Broadcasting Inc. v. ABC Inc., 02 CV 8813 (S.D.N.Y. 2003). Radio shock-jock Howard Stern sued ABC and Telepictures arguing that the reality TV show “Are You Hot” was a rip-off of his “The Evaluators” radio segments. Stern v. Telepictures Productions Inc., BC292018 (L.A. Super. Ct.).

In addition, ABC claimed that Fox's “Trading Spouses” stole the concept for its show “Wife Swap,” in which mothers from two families switch places, but ABC took no formal legal action against Fox.

Format Is Creative Element

Because reality programs are generally “scriptless,” the format of the show itself is the creative element that is frequently open to complaints of theft, rather than actual scripts or the traditional printed word. As all of the networks compete for the next great idea, the fine lines of distinction between a novel idea and a copycat by another name are blurring. No bright-line tests have emerged to clarify the ground rules for networks, studios or would-be writers and producers. Still, an examination of recent cases points to distinct trends.

The lawsuit between “The Contender” and “The Next Great Champ” treads a beaten path of allegations that a television network copied an unscripted program ' and along the way, tactics and law have changed. Years before the reality TV craze, a lawsuit against trend-setting MTV Networks showed the danger that courts, when they cannot look to scripts or written dialogue, may look to the format of the show when undertaking a copyright analysis. In turn, the court may determine that such formats contain primarily generic, stock elements, which are not entitled to copyright protection.

In that case, Sheehan v. MTV Networks, 22 U.S.P.Q.2d (BNA) 1394 (S.D.N.Y. 1992), plaintiffs Monica Sheehan and Luis Rojas developed an idea for a game show involving music video trivia. This was before MTV launched its game show, “Remote Control.” Both game show ideas included three players, multiple rounds of play in order to eliminate contestants, a host who poses questions and some kind of handheld device.

The U.S. District Court for the Southern District of New York granted summary judgment in favor of MTV and dismissed the plaintiffs' complaint. In its ruling, the court explained that MTV's show was similar to the plaintiffs' idea only in “'stock devices' common to game shows generally.”

Idea-theft claims took on added significance in 2001 when the reality craze heated up. A fight between CBS' “Survivor” and Fox's reality show “Boot Camp” showed that networks were willing to sue each other to protect their reality TV programs. CBS sued Fox for copyright infringement, common law unfair competition, California statutory unfair business practices and civil conspiracy. The complaint was filed in the U.S. District Court for the Central District of California. Survivor Productions LLC v. Fox Broadcasting Co., CV 01-3234.

CBS and producer Mark Burnett alleged that “Boot Camp” unlawfully copied their “Survivor” reality program series. CBS claimed that “Boot Camp” copied significant elements from “Survivor,” including the placing of contestants in harsh and unfamiliar conditions, requiring them to work together in teams and then forcing them to vote off one contestant at the end of each episode in a ritualized ceremony.

By September 2001, CBS and Fox stipulated to the dismissal of the complaint, pursuant to a confidential settlement agreement. It remains unclear just who, if anyone, won, but the lack of a clear ruling sent a message about just how difficult these claims are to make and defend.

Generic Elements Found

In the next inter-network case involving a dispute over the alleged copying of a reality program, the court was troubled with the notion of protecting an unscripted show that combined frequently used generic elements, as in the MTV case.

CBS and Burnett's “Survivor” were again at the center of the dispute. CBS sued ABC alleging that ABC's TV reality program “I'm a Celebrity, Get Me Out of Here!” infringed the copyright for CBS' “Survivor” series. CBS Broadcasting Inc. v. ABC Inc., 02 Civ. 8813 (S.D.N.Y. 2003). The U.S. District Court for the Southern District of New York denied CBS' motion for a preliminary injunction. The court explained that the two TV reality shows were “literary works” and that when evaluating claims of infringement involving such works, liability for copyright infringement results only if the protectable elements were substantially similar.

The court found that both shows combined well-known and frequently used generic elements of earlier works. Accordingly, the court refused to provide copyright protection for those elements, explaining that “providing protection to a combination of generic elements … would stifle innovation and would stifle the creative process that spawned the two shows at issue here.”

It became increasingly clear that a fight over the copying of formats presents a hard road for a plaintiff. As reflected by the MTV and CBS cases, a court could find that significant elements of an unscripted show are nothing more than a selection and sequencing of unprotectable, frequently used generic elements. Recent case law shows that plaintiffs must meet a higher standard in order to establish copyright infringement under circumstances in which the selection and sequencing of unprotectable elements of a program is at issue.

But attorneys for plaintiffs often cite the Ninth Circuit's decision in Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002), concerning the TV drama “City of Angels,” for the proposition that the selection and sequencing of unprotectable elements itself may qualify for copyright protection. The plaintiffs in that case claimed that the TV show infringed their treatment and screen plays. The court first identified the unprotectable elements as follows: “One cannot copyright the idea of an idealist young professional choosing between financial and emotional reward, or of love triangles among young professionals that eventually become strained, or of political forces interfering with private action.”

But then, in permitting the Metcalf case to survive summary judgment and go to trial, the appeals court explained that: “[t]he particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element. Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection.”

Notwithstanding this seemingly broad language, the Metcalf decision does not carry the day. First, in Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), the Ninth Circuit expressly limited the Metcalf holding to situations in which the unprotectable elements were “numerous” and sufficiently originally arranged. Most important, although the Metcalf case was permitted to go to trial, the jury returned a verdict for all defendants in June 2004, finding no copyright infringement. The verdict in the Metcalf case is currently on appeal.

The 'Contender' Suit

The plaintiff in “The Contender” case is Contender Partners LLC, a venture that includes Mark Burnett and DreamWorks, working for NBC. As alleged in the suit, “The Contender” is an unscripted drama focusing on the dreams, desires, struggles and sacrifices of talented young boxers who prepare for and compete in boxing matches for the chance to win $1 million and the title of “The Contender.” “The Next Great Champ” is an unscripted reality TV show involving boxers. The contestants are 12 aspiring boxers who compete in boxing-related challenges and boxing matches to win, among other things, a professional boxing contract with Oscar De La Hoya's boxing promotion company.

Contender Partners filed its lawsuit against Fox in August 2004, alleging that “The Next Great Champ” is a copycat of its show and that Contender Partners, not the defendants, was the originator of the concept. Perhaps seeing that copyright infringement claims were not clear winners in many earlier cases, Contender Partners apparently concluded that a copyright infringement claim was not the best fight plan ' even though allegations of copying were at the heart of the dispute.

Instead, the plaintiff brought only one cause of action ' for unlawful, fraudulent and unfair business practices under Sec. 17200 et seq. of the California Business and Professions Code. The plaintiff contended that it brought the action as a representative of the general public of the state of California, and sought to remedy what it claimed were the unlawful business practices that permeated the making of “The Next Great Champ.” In particular, the plaintiff alleged that the boxing matches in “The Next Great Champ” were arranged in violation of California law and boxing statutes. Despite taking this tack, the plaintiff reiterated that “The Next Great Champ” “is a blatant rip-off” of “The Contender” series.

The defendants responded that the lawsuit was not about remedying alleged violations of boxing law but was rather an effort to eliminate a competing reality TV show about boxing ' or at least to stall it. The defendants argued that Sec 17200, which was enacted to prevent unfair competition, could not be manipulated as a means to gain an unfair advantage over a legitimate competitor.

The Ultimate Ruling

At the end of August, the L.A. Superior Court rejected the plaintiff's motion for a preliminary injunction and stated that: “this is a case about money.” The court explained its belief that the plaintiff was more concerned about “being aced out of a concept being broadcasted” and ultimately denied the request for a preliminary injunction on the ground that the proposed injunction would be unconstitutional.

So “The Next Great Champ” began airing on Sept. 7 but was dropped in October and moved to cable on Fox Sports Net due to weak ratings. “The Contender” was set to debut in November but was pushed back to January.

But the fight over reality programming between networks is far from over. In the disputes between them thus far, no one network clearly has been able to use a lawsuit to protect its own reality program from alleged cherry picking by another network, no matter what legal theory is advanced.

As it stands, the current trend suggests that it may require a clear-cut case of copyright infringement ' based on extensive, verbatim copying ' in order to enable one network to prevent another from borrowing elements from one reality show in order to put a “new,” competing reality show on the air. For now, the fight to protect reality TV formats has a few more rounds to go.

In the superheated competition of reality television programming, ownership of ideas is increasingly being disputed. For example, the legal battle between reality TV boxing shows “The Contender” and “The Next Great Champ” has proved to be more of a slugfest than anything going on in the ring. Household names from sports and entertainment – Oscar De La Hoya and Sylvester Stallone ' lined up on each side. Fox Broadcasting Co. produced “The Next Great Champ” and its opponent DreamWorks produced “The Contender” for NBC. Contender Partners LLC v. Fox Broadcasting Co., SC082599 (L.A. Super. Ct.). At the heart of the dispute has been the simple idea about boxers who compete in some fashion, with one man left standing at the season finale.

Allegations of idea theft will likely increase as the number of reality TV shows expands and the realm of truly novel ideas shrinks. Resolution of these cases could set new standards for ownership of ideas and the best ways of protecting those rights.

In fact, since the new wave of reality TV exploded on to the airwaves with “Survivor” in the summer of 2000, there has been a rash of lawsuits. They come in varying and sometimes unusual forms ' everything from injuries during filming, to people who are dragged unwillingly into hidden-camera shows and lawsuits alleging that programs were rigged and people were cheated out of prizes.

The most significant claims have been over intellectual property rights ' primarily idea and format theft. Just about all of these lawsuits involve the big television networks on one side or another, or both. CBS sued ABC alleging “I'm a Celebrity, Get Me Out of Here!” was too much of a rip-off of “Survivor.” CBS Broadcasting Inc. v. ABC Inc., 02 CV 8813 (S.D.N.Y. 2003). Radio shock-jock Howard Stern sued ABC and Telepictures arguing that the reality TV show “Are You Hot” was a rip-off of his “The Evaluators” radio segments. Stern v. Telepictures Productions Inc., BC292018 (L.A. Super. Ct.).

In addition, ABC claimed that Fox's “Trading Spouses” stole the concept for its show “Wife Swap,” in which mothers from two families switch places, but ABC took no formal legal action against Fox.

Format Is Creative Element

Because reality programs are generally “scriptless,” the format of the show itself is the creative element that is frequently open to complaints of theft, rather than actual scripts or the traditional printed word. As all of the networks compete for the next great idea, the fine lines of distinction between a novel idea and a copycat by another name are blurring. No bright-line tests have emerged to clarify the ground rules for networks, studios or would-be writers and producers. Still, an examination of recent cases points to distinct trends.

The lawsuit between “The Contender” and “The Next Great Champ” treads a beaten path of allegations that a television network copied an unscripted program ' and along the way, tactics and law have changed. Years before the reality TV craze, a lawsuit against trend-setting MTV Networks showed the danger that courts, when they cannot look to scripts or written dialogue, may look to the format of the show when undertaking a copyright analysis. In turn, the court may determine that such formats contain primarily generic, stock elements, which are not entitled to copyright protection.

In that case, Sheehan v. MTV Networks, 22 U.S.P.Q.2d (BNA) 1394 (S.D.N.Y. 1992), plaintiffs Monica Sheehan and Luis Rojas developed an idea for a game show involving music video trivia. This was before MTV launched its game show, “Remote Control.” Both game show ideas included three players, multiple rounds of play in order to eliminate contestants, a host who poses questions and some kind of handheld device.

The U.S. District Court for the Southern District of New York granted summary judgment in favor of MTV and dismissed the plaintiffs' complaint. In its ruling, the court explained that MTV's show was similar to the plaintiffs' idea only in “'stock devices' common to game shows generally.”

Idea-theft claims took on added significance in 2001 when the reality craze heated up. A fight between CBS' “Survivor” and Fox's reality show “Boot Camp” showed that networks were willing to sue each other to protect their reality TV programs. CBS sued Fox for copyright infringement, common law unfair competition, California statutory unfair business practices and civil conspiracy. The complaint was filed in the U.S. District Court for the Central District of California. Survivor Productions LLC v. Fox Broadcasting Co., CV 01-3234.

CBS and producer Mark Burnett alleged that “Boot Camp” unlawfully copied their “Survivor” reality program series. CBS claimed that “Boot Camp” copied significant elements from “Survivor,” including the placing of contestants in harsh and unfamiliar conditions, requiring them to work together in teams and then forcing them to vote off one contestant at the end of each episode in a ritualized ceremony.

By September 2001, CBS and Fox stipulated to the dismissal of the complaint, pursuant to a confidential settlement agreement. It remains unclear just who, if anyone, won, but the lack of a clear ruling sent a message about just how difficult these claims are to make and defend.

Generic Elements Found

In the next inter-network case involving a dispute over the alleged copying of a reality program, the court was troubled with the notion of protecting an unscripted show that combined frequently used generic elements, as in the MTV case.

CBS and Burnett's “Survivor” were again at the center of the dispute. CBS sued ABC alleging that ABC's TV reality program “I'm a Celebrity, Get Me Out of Here!” infringed the copyright for CBS' “Survivor” series. CBS Broadcasting Inc. v. ABC Inc., 02 Civ. 8813 (S.D.N.Y. 2003). The U.S. District Court for the Southern District of New York denied CBS' motion for a preliminary injunction. The court explained that the two TV reality shows were “literary works” and that when evaluating claims of infringement involving such works, liability for copyright infringement results only if the protectable elements were substantially similar.

The court found that both shows combined well-known and frequently used generic elements of earlier works. Accordingly, the court refused to provide copyright protection for those elements, explaining that “providing protection to a combination of generic elements … would stifle innovation and would stifle the creative process that spawned the two shows at issue here.”

It became increasingly clear that a fight over the copying of formats presents a hard road for a plaintiff. As reflected by the MTV and CBS cases, a court could find that significant elements of an unscripted show are nothing more than a selection and sequencing of unprotectable, frequently used generic elements. Recent case law shows that plaintiffs must meet a higher standard in order to establish copyright infringement under circumstances in which the selection and sequencing of unprotectable elements of a program is at issue.

But attorneys for plaintiffs often cite the Ninth Circuit's decision in Metcalf v. Bochco , 294 F.3d 1069 (9th Cir. 2002), concerning the TV drama “City of Angels,” for the proposition that the selection and sequencing of unprotectable elements itself may qualify for copyright protection. The plaintiffs in that case claimed that the TV show infringed their treatment and screen plays. The court first identified the unprotectable elements as follows: “One cannot copyright the idea of an idealist young professional choosing between financial and emotional reward, or of love triangles among young professionals that eventually become strained, or of political forces interfering with private action.”

But then, in permitting the Metcalf case to survive summary judgment and go to trial, the appeals court explained that: “[t]he particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element. Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection.”

Notwithstanding this seemingly broad language, the Metcalf decision does not carry the day. First, in Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), the Ninth Circuit expressly limited the Metcalf holding to situations in which the unprotectable elements were “numerous” and sufficiently originally arranged. Most important, although the Metcalf case was permitted to go to trial, the jury returned a verdict for all defendants in June 2004, finding no copyright infringement. The verdict in the Metcalf case is currently on appeal.

The 'Contender' Suit

The plaintiff in “The Contender” case is Contender Partners LLC, a venture that includes Mark Burnett and DreamWorks, working for NBC. As alleged in the suit, “The Contender” is an unscripted drama focusing on the dreams, desires, struggles and sacrifices of talented young boxers who prepare for and compete in boxing matches for the chance to win $1 million and the title of “The Contender.” “The Next Great Champ” is an unscripted reality TV show involving boxers. The contestants are 12 aspiring boxers who compete in boxing-related challenges and boxing matches to win, among other things, a professional boxing contract with Oscar De La Hoya's boxing promotion company.

Contender Partners filed its lawsuit against Fox in August 2004, alleging that “The Next Great Champ” is a copycat of its show and that Contender Partners, not the defendants, was the originator of the concept. Perhaps seeing that copyright infringement claims were not clear winners in many earlier cases, Contender Partners apparently concluded that a copyright infringement claim was not the best fight plan ' even though allegations of copying were at the heart of the dispute.

Instead, the plaintiff brought only one cause of action ' for unlawful, fraudulent and unfair business practices under Sec. 17200 et seq. of the California Business and Professions Code. The plaintiff contended that it brought the action as a representative of the general public of the state of California, and sought to remedy what it claimed were the unlawful business practices that permeated the making of “The Next Great Champ.” In particular, the plaintiff alleged that the boxing matches in “The Next Great Champ” were arranged in violation of California law and boxing statutes. Despite taking this tack, the plaintiff reiterated that “The Next Great Champ” “is a blatant rip-off” of “The Contender” series.

The defendants responded that the lawsuit was not about remedying alleged violations of boxing law but was rather an effort to eliminate a competing reality TV show about boxing ' or at least to stall it. The defendants argued that Sec 17200, which was enacted to prevent unfair competition, could not be manipulated as a means to gain an unfair advantage over a legitimate competitor.

The Ultimate Ruling

At the end of August, the L.A. Superior Court rejected the plaintiff's motion for a preliminary injunction and stated that: “this is a case about money.” The court explained its belief that the plaintiff was more concerned about “being aced out of a concept being broadcasted” and ultimately denied the request for a preliminary injunction on the ground that the proposed injunction would be unconstitutional.

So “The Next Great Champ” began airing on Sept. 7 but was dropped in October and moved to cable on Fox Sports Net due to weak ratings. “The Contender” was set to debut in November but was pushed back to January.

But the fight over reality programming between networks is far from over. In the disputes between them thus far, no one network clearly has been able to use a lawsuit to protect its own reality program from alleged cherry picking by another network, no matter what legal theory is advanced.

As it stands, the current trend suggests that it may require a clear-cut case of copyright infringement ' based on extensive, verbatim copying ' in order to enable one network to prevent another from borrowing elements from one reality show in order to put a “new,” competing reality show on the air. For now, the fight to protect reality TV formats has a few more rounds to go.