Is there a "Secret" to Success in Reality TV Formatting?

By Robert A. Levine, '13

When one network attempts to rip-off another network’s program, the aggrieved party may turn to its legal counsel to see if there are any claims against the perceived “copycat” show and its producers. While a written expression of ideas such as scripts are copyrightable intellectual property, see 17 U.S.C. § 101 (2010), some entertainment industry executives and lawyers argue there is a “gap” in protection in regards to “entertainment formats,” and specifically in the context of reality television programming. See generally Edwin Komen, Are Formats the Floormats Of Copyright?, Law360 (Jul. 10, 2012), http://www.law360.com/articles/358214/are-formats-the-floor-mats-of-copy... (hereinafter Komen). As a result, rights holders have attempted to bring causes of action based on other legal theories, such as trade secrets. This circumstance recently played out in the Central District of California, where ABC allegedly copied one of CBS’ reality TV shows, and CBS attempted to frame the conduct as an act of trade secret misappropriation.

On May 10, 2012, CBS Broadcasting, Inc. (“CBS”) filed suit against ABC, Inc. and the Walt Disney Co. (“ABC) in the Central District of California, alleging ten causes of action, including trade secrets misappropriation. Complaint at 1-2 CBS Broadcasting Inc. v. American Broadcasting Companies, Inc. (“CBS Broadcasting”) (C.D. Cal. 2012) (No. 12-04073) (“Compl.”). CBS airs a popular reality television show Big Brother. Id. The network claimed that ABC misappropriated several of CBS’ trade secrets -- including production processes for Big Brother -- in developing a new reality series Life in a Glass House (“Glass House”). Id. at 15-16. CBS argued that these processes were unique in the industry and made Big Brother successful by enabling the show’s staff to “prep, produce, edit and deliver each episode in two and a half days.” Id. at 16. CBS believed that ABC improperly acquired knowledge about these processes from former Big Brother producers and staff whom ABC hired to work on Glass House. Id. at 16-17. The workers all had non-disclosure agreements with CBS. Id.

CBS later filed a Temporary Restraining Order (TRO) with the Court to enjoin ABC from airing its program. See generally Application for a Temporary Restraining Order CBS Broadcasting Inc. v. American Broadcasting Companies, Inc. (C.D. Cal. 2012) (No. 12-04073) (“TRO”). However, the Honorable Gary A. Feess denied the TRO, expressing “serious doubts as to CBS’s ability to demonstrate either [1] that the purported trade secrets listed qualify for protection; or [2] that Defendants are actively misappropriating any such trade secrets.” Order Re: Application for Temporary Restraining order at 13 CBS Broadcasting Inc. v. American Broadcasting Companies, Inc. (C.D. Cal. June 21, 2012) (No. 12-04073) (“Order ”).

One party alleging that another stole an idea for a TV show (or movie, for the matter) is by no means uncommon. See, e.g., Kenneth Basin & Tina Rad, "I Could Have Been A Fragrance Millionaire": Toward A Federal Idea Protection Act, 56 J. Copyright Soc'y U.S.A. 731, 732-33 (2009) (listing “idea . . . litigation” cases in the entertainment industry, and noting that “the still growing field of reality television may prove the most lawsuit-prone genre yet” (internal citation omitted)). The Ninth Circuit has a particular expertise in dealing with these types of cases, as “Hollywood” falls within the Circuit’s jurisdictional borders. Claims for stolen “ideas” – whether it be in the entertainment industry or otherwise -- are typically brought through a breach of contract cause of action. E.g. Basin & Rad, 56 J. Copyright Soc'y U.S.A. at 734 (“The majority of idea theft law claims are brought under the theory of an express or implied contract.”); see also Grosso v. Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004) opinion amended on denial of reh'g, 400 F.3d 658 (9th Cir. 2005) (holding that a breach of an implied contract claim alleging theft of a movie idea is not preempted by the Copyright Act).

However, these claims typically stem from a “pitch meeting” gone awry: a writer shares a “brilliant idea for a new film or television program,” and the producer rejects the idea, only to later use it without compensating the “idea purveryor.” See Aileen Brophy, Whose Idea Is It Anyway? Protecting Idea Purveyors and Media Producers After Grosso v. Miramax, 23 Cardozo Arts & Ent. L.J. 507, 524 (2005). In CBS, there was no meeting or pitch: CBS’ claim is essentially one of a copycat television show format. Parties generally face an uphill battle when attempting to assert their television format as protectable intellectual property, see generally Jonathan Coad, TV Format Rights Owners Face Large Reality Cheque, The Guardian (Apr. 24, 6:59 EDT), http://www.guardian.co.uk/media-network/media-network-blog/2012/apr/24/t..., and “format wars have had a long history with no clear-cut victor . . . .” Komen (citing K. Raygor and E. Komen, Limitations On Copyright Protection For Format Ideas In Reality Television Programming, 2009 MEDIA LAW RESOURCE CENTER BULLETIN, Issue No. 4, at 97-121 (December 2009)). As such, CBS attempted to combine various causes of action to stop ABC from airing its show, focusing mainly on copyright infringement and trade secret misappropriation. However, as Judge Ness noted in his order denying the TRO, CBS not only conflated the copyright and Trade Secret issues, but most of CBS’ alleged intellectual property may simply be unprotectable.

CBS’ copyright infringement claim boiled down to “whether there [was] substantial similarity between Big Brother’s protected elements and elements of Glass House.” Order at 5. Copyright law protects the “concrete expression of . . . ideas,” but not “general plot ideas” or “procedure[s], process[es], system[s], or method[s] of operation.” Id. 6-7 (internal citation and quotation marks omitted); see also 17 U.S.C. § 102(b). Nor does it aim at rewarding one’s labor in the interest of fairness. Id. at 7 (citing Feist Publications, Inc., v. Rural Tele. Serv. Co., 499 U.S. 340, 350 (1991)). “CBS cannot merely cobble together a series of structural and conceptual reality television ‘elements’ having little, if anything to do with ‘specific details’ or ‘concrete elements’ of the artwork, and then claim the combination of these vague elements substantiate a substantial similarity finding . . . .” Id. at 11. Indeed, Judge Ness goes as far as to suggest that the nature of reality-based television shows – i.e. that their “the fundamental premise is . . . to let ‘reality’ play its course” – may take the form outside the gamut of copyright protection all together. See id. at 12 (noting that reality television shows do not “entail a ‘plot as that term is normally used’ in the context of copyright law, and that “[r]eality . . . is hard to copy” (internal citation omitted)).

This was not the first time CBS had been unsuccessful at utilizing copyright law to protect its television formats. Indeed, the network had previously tried (and failed) to gain a TRO against ABC on a similar copyright infringement legal theory regarding ABC’s show “I’m a Celebrity… Get Me Out of Here.” See CBS Loses Fight to Stop US Version of 'I'm a Celebrity...', Brand Republic (Jan. 14, 2003 4:00 PM), http://www.brandrepublic.com/news/168059/CBS-loses-fight-stop-US-version.... Thus, CBS added a rather novel trade secret claim to the TRO, which essentially framed ABC’s copycat programming as an act of corporate espionage. In cases of stolen ideas that do not involve submissions -- and rather “dueling pairs of conspicuous projects” – trade secret claims may be actionable “to the extent they involve corporate espionage . . . .” Basin & Rad, 56 J. Copyright Soc'y U.S.A. at 759 n.129.

The Court held that CBS had failed to present enough evidence to warrant a TRO. While the specifics of CBS’ alleged trade secrets were redacted from their motion, see TRO at 18 and Appendix A, the Court nonetheless deemed the information “generic material,” and refused CBS’ carte blanche claim that the “[unique] combination of characteristics and components” created a “unified process” that was both confidential, and “afford[ed] a competitive advantage . . . .” Order at 13 and n.8 (citing Vermont Microsystems, Inc. v. Autodesk, Inc., 88 F.3d 142 (2d. Cir. 1996); O2 Micro Intern. Ltd. v. Monolithic Power Systems, Inc., 420 F.Supp.2d 1070 (N.D. Cal. 2006)).

Although CBS presented some viable circumstantial evidence misappropriation (i.e. ABC did in fact hire former Big Brother employees with non-disclosure agreements), the Court noted the lack of direct evidence of misappropriation. Order at 13-14. While direct evidence is not necessarily required, the Court refused to let CBS rely on the inevitable disclosure doctrine and other indirect evidence to completely halt a multi-million dollar television production. Order at 13-14.

Although unsuccessful in this instance, I do not believe that Judge Ness’ ruling forecloses the possibility that a network can have viable trade secrets in the processes used to create forms of entertainment. The existence and protection of such a secret could make the threat of a misappropriation claim a valuable tool to help fill in the current gap in protection. While at least one author has campaigned for a “Federal Idea Protection Act,” see generally Basin & Rad, 56 J. Copyright Soc'y U.S.A. at 758-66, and other aggrieved parties have attempted to use creative ways to bring claims for idea theft, see, e.g., Eriq Gardner, NBCU, BBC Win ‘Stolen’ TV Idea Case, THR, Esq. (Oct. 4, 2010 8:59 AM), http://reporter.blogs.com/thresq/2010/10/judge-rules-stolen-tv-idea-does... (describing Christopher Cardillo’s “legal theory” that NBCU and BBC engaged in “criminal racketeering by running a website that allowed people to submit ideas for new TV shows” after the networks allegedly stole his idea for a reality show about a “family of four that travel around the nation in a Winnebago”), formats appear to at least be “floor mats [of] copyright.” Komen. Moreover, given the propensity for American based networks to import foreign reality programming formats, the issue has become global. See International Format Lawyers Association, http://www.ifla.tv/ (last visited Sep. 14, 2012) (describing the need for an “international network of . . . [television] format lawyers” (emphasis added).

As parties generally lack the ability to stop others from simply replicating their success in the entertainment industry, the threat of trade secrets claims (framed as acts of corporate espionage) appears to be a novel approach and could offer additional protection. It would also influence networks to beef up security measures surrounding productions in order to prove they took reasonable precautions to protect their information, and preserve a claim for trade secret misappropriation. That being said, while “‘reality’ fare have become [a] source of the [television] industry's success,” Arthur R. Miller, Common Law Protection for Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703, 711-12 (2006) (internal citation omitted), property is only worth protecting so long as it remains valuable. As was the case with the ill-fated Glass House, networks may lose “interest[] in pursuing . . . case[s] against . . . show[s] [that] no one is watching anyway.” Sean O’Neal, CBS Decides that ABC's Big Brother Rip-Off Isn't Even Worth Dignifying with a Lawsuit, A.V. Club (Aug. 17, 2012) (noting CBS had dropped its suit, and released a statement that “[t]he viewers had spoken and delivered the ultimate form of justice against The Glass House”).