Why Copyright Law Won’t Protect Reality TV
ABC’s new reality TV show The Glass House premiered at the end of last month. It bears a striking similarity to CBS’s longtime-running reality TV show Big Brother. In each show, 12-14 contestants are housebound as they compete against each other for a cash prize. Their every move is recorded via hidden camera, and episodes are edited and aired as the competition progresses. At the end of each week one “houseguest” is voted off – in Big Brother you are “evicted,” whereas in The Glass House you are “expelled.”
Just one month before The Glass House premiere, CBS filed suit against ABC for copyright and trade secret infringement. CBS also sought a temporary restraining order (TRO) in an effort to prevent the show from even airing. Days before ABC’s launch date, the California district court denied CBS’s request for a TRO on the grounds that CBS could not show a likelihood of success on the claims of copyright and trade secret infringement. The suit goes forward, but for now, so does the knock-off.
While the court acknowledged that copying had undeniably occurred, it maintained that The Glass House didn’t copy any protected elements of Big Brother. The court threw out CBS’s arguments for both copyright and trade secret violations, faulting CBS for conflating the two claims and presenting an overbroad argument.
For its copyright infringement claim, CBS asserted that the The Glass House had copied the heart of Big Brother, yet inexplicably described these “key expressive features” in rather generic terms: “an unscripted house reality competition show whose voyeuristic feel depends on minimal interaction between cast and production, and viewer and production.” CBS’s abstract description of Big Brother strikes at the heart of the problem – because there is no set cast, dialogue, or plot, the only thing CBS can lay claim to under copyright is the general structure of its show.
Yet, structure isn’t really copyrightable. This idea goes back to Judge Learned Hand’s pillar of copyright analysis, the idea/expression dichotomy, which holds that the more generic a story pattern is, the less copyrightable it is likely to be; you can only copyright the expression of an idea, not an idea itself. Copyright is for something “fixed in a tangible medium,” as it says in the Copyright Act. The problem with reality TV, however, is that it is never “fixed.” Dialogue is purposely unscripted, plots are improvised, and the characters change every season.
CBS’s TRO denial is the most recent window into the fragility of copyright protection for reality TV programming. CBS’s stab at showing copyright infringement is inherently weak, due to the unscripted nature of reality TV and the well-established copyright threshold of “fixed” expression. The court equated CBS’s copyright claim to an attempt to lay general claim to competition-based, voyeuristic, reality TV programming. The court has a point, but what does this mean for reality TV programming going forward? These types of programming are increasingly popular, but are all based on unfixed expression. If copyright protection is known to be weak, will investors be more hesitant to develop such programs due to the fear that a knockoff with slightly different bells and whistles could be easily created to compete against the original?
Perhaps, although the court in its preliminary ruling of Big Brother v. The Glass House emphasized one important difference between the two shows – the amount of viewer participation. In Big Brother, contestants are voted off by their fellow contestants, whereas in The Glass House, contestants are voted off by the audience. This difference changes the power dynamics at play in each of these shows, and like the court predicted, since The Glass House has aired, this viewer dynamic has given this knock-off show a distinctly different feel.
Oddly enough, Big Brother, in its first season, was even more similar to The Glass House. In its first season 14 years ago, BB let the audience decide who was voted off each week. Yet, terrible ratings lead the producers to downplay audience participation and give more power to the contestants. It was this switch that enriched the power dynamics at play on the show and made for sizzling reality TV full of betrayal, love and lust. So the fact that CBS would even bother suing ABC over a concept they themselves tossed out after one season is a curious affair. It makes CBS look like a greedy, unsuccessful copyright troll. Especially since The Glass House isn’t fairing well with the viewers. It’s as if ABC is simply repeating CBS’s failed experiment. Why go crying to the court about that?