USDC, C.D. California, June 21, 2012
- District court denies CBS’s request for temporary restraining order enjoining production and broadcast of ABC’s reality show The Glass House, holding that CBS could not establish likelihood of success on claims of copyright infringement and specifically finding that CBS would have difficulty establishing that ABC had misappropriated protectable elements from CBS’s Big Brother.
CBS Broadcasting is the producer of the reality TV show Big Brother, in which 12 to 14 contestants live exclusively on a soundstage built to look like a house where all of their daily interactions are videotaped by cameras installed in every room and operating 24 hours a day, and who compete in a series of weekly contests to establish who will be the last contestant remaining after others are "evicted" week by week. CBS brought suit against American Broadcasting Companies, producer of The Glass House, a competing reality show with similar circumstances, and other defendants involved in producing the show, alleging copyright infringement and trade secret misappropriation, as well as other state law claims. CBS asserted that myriad similarities between the two shows, together with the defendants' prior access to Big Brother source material and ABC’s employment of 26 employees who worked on Big Brother, evidenced copying in violation of its copyright in Big Brother. CBS also asserted that its streamlined filming, editing and production schedules and techniques were protectable trade secrets and that defendants had misappropriated these trade secrets by employing the same or similar techniques in the production of The Glass House. CBS sought a temporary restraining order to enjoin the production and broadcast of The Glass House and to order the return of allegedly confidential materials, as well as an order to show cause why the court should not enter a preliminary injunction preventing the show from airing during the pendency of the lawsuit. The district court denied CBS’s requests, finding that CBS could not establish the likelihood of success on either its copyright infringement or trade secrets claims.
In support of its application, CBS asserted that myriad similarities between the two shows, together with the defendants' prior access to Big Brother source material and the networks' employment of 26 employees who worked on Big Brother, including defendant Kenneth Rosen, who became The Glass House’s "show runner," evidenced copying in violation of its copyright in Big Brother. CBS also asserted that its streamlined filming, editing and production schedules and techniques were protectable trade secrets and that defendants had misappropriated these trade secrets by employing the same or similar techniques in the production of Glass House. Defendants opposed the application on the principal grounds that CBS has failed to demonstrate either the requisite "similarity" between the two shows, or that any of the purported trade secrets qualified for protection under California law.
The court denied CBS's motion, finding that while it appeared likely that ABC had engaged in some copying, given the similarity in the concepts of the two shows, CBS was unlikely to be able to establish the copying of any protectable original expressive elements from Big Brother. Noting that no dispute existed that CBS owned copyright interests in the Big Brother show or that the two shows shared some similar elements, and that prior broadcasts of multiple seasons of the show, as well as the employment of several members of The Glass House team on earlier seasons of Big Brother, eliminated any dispute that defendants had access to the copyrighted work, the court framed the issue in terms of CBS’s ability to demonstrate that The Glass House copied protectable elements of Big Brother. The court concluded that CBS could not.
As the court explained, copyright law does not protect abstract and generalized plot ideas or "scenes à faire," only the concrete expressions of those ideas, the specific details or concrete elements that make up the sequence of events and the relationships between major characters. It does not protect the author’s hard work, persistence or tenacity. It protects only his original expression of an idea and not the procedures or processes or methods of creating those expressions. CBS argued that a number of procedures, processes and techniques used to produce Big Brother constituted protectable elements, including the number and placement of cameras used to record the activities of the "cast" of the show; live video steam to the Internet; that contestants are housebound for some or all of the period during which the show is shot; the timing and scope of the post-production work, that the shows air before the final episode has been shot; and the size of the production crew and the array of crew member positions. The court disagreed, finding that while these various procedures and processes might ultimately impact the expressive elements of the show, they were not protectable elements and had to be removed from the substantial similarity analysis.
The court reasoned that the nature of the works – voyeuristic reality TV shows – was critical to the substantial similarity analysis, and that the traditional protectable elements of plot, themes, dialogue, mood, setting, pace, characters, and sequences of events, in which CBS claimed articulable substantial similarity, were largely absent from the shows. Until the cameras begin recording and the action unfolded in the purposefully unscripted and unpredictable way, the shows contain no plot or interaction between the character (in fact, no set characters at all, since the shows have no authors), no dialog, pacing or sequencing of events. The shows have a setting, which the court found "hardly novel," and some general ideas about the structure, but little else. Once the non-protectable processes and techniques elements were eliminated from consideration, the court reasoned, CBS was really seeking copyright protection for what amounted to the format or template that underlies its show – a voyeuristic reality show involving 12 to 14 contestants, competing for a grand prize while being subjected to round-the-clock observation, locked in a sound stage designed to look like a house and subject to periodic contests and challenges to create plot elements and interactions among the housemates that are more interesting, and building drama as, one by one, the contestants are voted off during the weekly broadcast.
The court considered whether CBS’s Big Brother format contained a sufficient number of concrete, expressive elements to merit copyright protection or whether CBS was seeking to protect what amounted to an abstract concept, and concluded that while the Big Brother concept was more concrete than the broad abstraction of "voyeuristic reality programming," it was still general and contained only unprotectable elements. The ideas of placing contestants an environment where their every move is recorded and having them compete for a cash prize are not unique or new to Big Brother, and subjecting them to lesser events and competitions is also a staple of reality TV, "for obvious reasons," according to the court: "competition creates conflict; conflict creates drama; and drama (hopefully) creates interest, viewers and revenue." The court rejected CBS’s various assertions that Big Brother’s use of diverse "characters" – the houseguests – "improvised" dialogue, competition and expulsions, and the expectation that episodes would be about "about trust, betrayal, ambition, disappointment, bonding, competitiveness," constituted unique and protectable elements, noting that these were "nothing but particular tropes of the reality television genre, each of which is too generic to merit copyright protection." The court likewise rejected the argument that all of these elements, together and in combination, supported a finding of "substantial similarity," concluding that CBS's assertion that "wholesale borrowing" of Big Brother’s constituent features "emulates the key expressive features" of the show "still fails to identify the sort of concrete discernible and protectable 'plot,' 'themes,' or 'dialogue' that might give rise to a finding of similarity."
The court also disagreed with CBS’s reliance on the Ninth Circuit's decision in Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) to support its argument that the selection and combination of any otherwise unprotectable elements are entitled to copyright protection. According to the court, Metcalf confirms that copyright law does not protect ideas, only expressions of those ideas, including the "specific details" of the author’s rendering and the "actual concrete elements that make up the total sequence of events and the relationships between the major characters." The court concluded: "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 point to Metcalf."
Similarly, the court found no likelihood that CBS would succeed on the merits of its misappropriation of trade secrets claim. CBS asserted 14 purported trade secrets allegedly misappropriated by defendants, including Big Brother manuals, which provide instructions to contestants, as well as various filming, editing and production techniques that CBS alleged were unique to Big Brother, and which resulted in its singular feel and success. The court concluded, however, that it had "serious doubts" as to CBS's ability to demonstrate either that the alleged trade secrets qualified for protection or that defendants actively misappropriated them. Specifically, the court found that while some evidence indicated that ABC used portions of Big Brother’s House Guest manual and Master Control Room schedules, these documents were not formulas, methods, or processes that provided "independent economic value" because they were unknown to the general public, as required by California law. In fact, the court noted, portions of similar manuals were available online, and testimony indicated that budgetary considerations guided ABC’s hiring decisions rather than the dictates of the Master Control Room schedule.
As to the alleged trade secrets involving filming, editing and production, the court held that CBS failed to meet its burden of showing what was particularly unique and valuable about its techniques, as well as any direct evidence of misappropriation. The court agreed with defendants' contention that similar techniques are commonplace in the production of reality television programming, and CBS bears the burden of delineating precisely what makes these particular techniques unique and valuable – a burden it failed to meet. Circumstantial evidence, including media accounts of the alleged misappropriation and the fact that former Big Brother staffers were hired by ABC, was insufficient to support an injunction in the face of California’s public policy in favor of both employment mobility and ability to use knowledge gained in prior positions.
Finally, the court found that CBS failed to satisfy any of the other grounds for an injunction, including that it would suffer irreparable harm by denial of the application for the TRO, since CBS could be compensated through monetary damages for any loss of viewership that might result from the airing of The Glass House. The balance of equities also favored defendants, since an injunction would result in the loss of employment of more than 100 employees and the contestants, as well as rendering defendants' investment of more than $20 million in the show's development and promotion almost worthless, while CBS could be compensated for any damages if the court did not enjoin the production and airing of The Glass House.