CBS Throws Stones At ABC’s “Glass House”
by Jerry Glover
July 16, 2012
The CBS competitive “reality” series, “Big Brother”, has been on the air for 13 years. It takes place in a house constructed on a sound stage where 12-14 people live. Cameras run 24/7 in almost all parts of the house. The contestants compete to outlast the others over a 12 week period through a series of challenges and house votes which occur weekly. Of course, there is no show script; the drama develops from the interactions of the contestants and the outcomes of challenges and house votes. The show has become a recognizable CBS property.
=So, CBS was understandably upset when ABC announced a new series titled “Glass House” which basically followed the same format as “Big Brother.” CBS sought a temporary restraining order (TRO) against ABC in the U.S. District Court for the Central District of California alleging copyright infringement and misappropriation of trade secrets. CBS Broadcasting, Inc. v. American Broadcasting Companies, Inc., 2012 WL (C.D. Cal. 2012). CBS sought the TRO to prevent broadcast of “Glass House.” The trade secret arose after ABC hired 26 former employees of “Big Brother” including a former employee who was now responsible for the day-to-day operations of the ABC show (the “showrunner”). ABC contended that the two series were not substantially similar as required by the U.S. Copyright Act and that CBS’ purported trade secrets did not deserve protection under California law.
CBS alleged that one element contributing to the success of “Big Brother” was its recording, editing and broadcasting episodes during the competition within 48 hours of the events actually happening which was made possible by editing and production techniques developed by CBS over the years of “Big Brother” production.
In order to obtain a TRO, CBS would have to show, among other things, that it was likely to succeed on the merits of its claims.
To establish copyright infringement, the copyright owner must prove (1) ownership of a valid copyright and (2) copying of original elements of copyrightable elements. There was no dispute that CBS owned valid copyrights in the “Big Brother” programs.
To establish copying (when direct evidence of that element is often impossible to produce), the plaintiff must be show that the defendant had access to the plaintiff’s work and that the two works are substantially similar. The district court held there was no dispute that ABC had access to “Big Brother” because of its many years of broadcast and because of the hiring of former “Big Brother” employees. The court even noted that it was clear some copying had occurred. But the big question was whether the material copied was substantial similarity to protectable elements of “Big Brother.”
The court analyzed this issue by starting with some basic copyright principles:
–Ideas are not copyrightable, only the expression of those ideas may be protected.
–Unprotectable elements include general plot ideas, scenes that flow naturally from unprotectable basis plot premises (scenes a faire).
–Copyright law does not protect hard work.
–Copyright does not extend to any “procedure, process, system, [or] method of operation.” 17 U.S.C. Sec. 102(b).
CBS argued that its “Big Brother” production techniques constituted protectable elements. The court noted that these techniques may have contributed to the success of the series and contributed to other expressive elements of the series, but they were merely a method of operation which the Copyright Act does not protect.
Taking from cases involving copyright infringement of fictional works, CBS argued that its protectable elements included plot, themes, dialogue, mood, setting, pace, characters and sequences of events. But the court noted that elements that may have resulted in protection for fictional works did not really work with what the court labeled “voyeuristic” reality programming since there is no plot, dialogue, pace or sequence of events planned in advance. These elements are not revealed and are not developed until the cameras start rolling for each season of the series. In addition there are no “characters” because there is no author creating them.
The court cut through CBS’ argument stating that CBS was actually trying to protect the show’s underlying format or template. Were there protectable elements found in that format? The court said no. It noted that CBS could not claim protection for the concept of reality programming or even the concept of voyeuristic reality programming where strangers are thrown together in a household. The court recognized that programs proceeding “Big Brother” citing the 1991 Dutch television series “Nummer 28, MTV’s “Real World.” In addition, the court noted that reality programs often rely on contestant competitions. In denying the TRO motion on the copyright infringement claim, the court noted that “reality” is hard to copy.
Misappropriation of Trade Secrets
In California, trade secret misappropriation requires a plaintiff to demonstrate (1) ownership of a trade secret (2) that the defendant acquired, disclosed or used through improper means and (3) the defendant’s actions damaged the plaintiff. California law defines a trade secrets as “any information, including a formula pattern, compilation, program, device, method, technique or process that (q1) [d]erives independent economic value, actual or potential, from not being generally known to the public or other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code Sec. 34326.1(d).
The court noted that the “Glass House” showrunner had copied portions of the “Big Brother” house guest manual which explains to contestants how to conduct themselves on television and had consulted the “Big Brother” master control room schedule to determine how many story producers to hire. But neither of these documents contained elements that met the statutory definition of trade secrets. The court noted that even if these formulaic elements constituted trade secrets, they had been revealed since various portions of the “Big Brother” house guest manual were available on the Internet. Additionally, the showrunner stated in his deposition that he ultimately did not use the master control room schedule since budget considerations determined how many employees he could hire.
The same production techniques that CBS had earlier argued deserved copyright protection also lost as trade secrets since these techniques were commonly used to produce reality television programs. In addition, CBS could not show that ABC actually used these techniques in the production of “Glass House.”
Although probably not required to do so, the court also looked at a second elements required before a TRO is used: CBS is likely to suffer irreparable harm in the absence of preliminary relief. At one time, a plaintiff’s copyright infringement claim allowed a court to presume irreparable harm but decisions from the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit no longer allow that presumption. SeeFlexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011). The court noted that the ABC broadcast would “dull” viewers’ appetite for “Big Brother”. But even if “Big Brother” lost viewers, that loss is not enough to show irreparable harm. CBS failed to show that loss in viewership could not later be compensated through money damages.
CBS additionally did not show that the third element for obtaining a TRO–the balance of equities tips in CBS’ favor. The court noted that if a TRO were to be granted, over 100 employees of the ABC show would be left without work as well as the “Glass House” contestants, many of whom had given up their jobs to be a part of the show. The court also stated that the ABC investment in the series, about $20 million, would be wasted. CBS had not shown that any harm to it would be irreparable and not compensable with money damages. Therefore, the equities tipped in ABC’s favor.