The recent spat between ABC and CBS over the former’s new reality series The Glass House, which CBS alleges is a rip off of Big Brother, undermines the protection of formats and has potentially damaging long-term consequences. So says entertainment lawyer Jonathan Coad, founder and director of the International Format Lawyers Association and a partner in the media brands and technology group at London-based law firm Lewis Silkin. But, Coad observes, the case has also highlighted the pivotal role played by the superformats in anchoring schedules, and the vertiginous sums of money that broadcasters are prepared to pay for them.
Coad illustrates the point with and “utterly staggering” statistic: “Richard Desmond bought [UK terrestrial] Channel Five for £103 million. But he paid £200 million for a five-year licence to show Big Brother on that same channel. That’s relevant to this case, because it clearly demonstrates the huge value placed on the top formats by broadcasters.”
What’s more, Big Brother is a relatively low earner. At the last count, American Idol TV franchise was ‘conservatively’ valued at $2.5 billion, while its British cousin The X Factor is said to be worth £300 million. Coad also suggests that, thanks to the ABC/CBS case, Big Brother‘s value is likely to have plummeted – and not just because of The Glass House‘s head-to-head positioning in the schedules.
“People may well say, ‘If ABC can knock out a lookalike of Big Brother, why should we spend vast sums of money on buying the rights? We’ll just knock one out too…”
There’s no getting away from the fact that The Glass House controversy is a blow to IP protection. Coad is blunt: “This is bad news for reality-format producers. It also looks as though the US court [which denied CBS a temporary injunction to postpone the launch of The Glass House] has taken a relatively narrow view on what’s protectable under law and what isn’t. My view is that this is short-termist and, for ABC, may prove to be an own goal if they ever find themselves in the position of trying to protect one of their own reality formats against a copycat.”
Another interesting facet of The Glass House dispute is that it’s an almost identical re-run of litigation between CBS and ABC nine years’ ago – down to the same unsatisfactory conclusion from CBS’ point of view.
In 2003, CBS claimed that ABC’s I’m A Celebrity… Get Me Out Of Here! was a clone of Survivor and sought an injunction to block the airing of ABC’s survival rival. Dismissing the claim, US district judge Loretta Preska said: “The evolution of TV shows… is a continual process involving borrowing liberally from what has gone before.”
Coad, who represented Granada TV (makers of I’m A Celebrity…) in the UK action, agrees with Judge Preska that all new formats owe a debt to their predecessors. As a result, “to succeed in a claim for infringement, you must establish substantial copying rather than mere inspiration,” he says.
But he also makes the point that, with the Survivor/I‘m A Celebrity… case, neither side of the dispute was arguing for greater liberality regarding IP protection by the courts. “Nobody was seeking to undermine the protection of formats,” he adds.
So what’s the take-away point for FRAPA members worried about the implications of the latest CBS/ABC run-in? “Take all the precautions you can,” Coad says. “If you think laterally and protect as many elements of your format as possible, you have a better chance of protecting the whole. My advice is to redouble your vigilance. Ultimately, we’re all reliant on the decisions of the judges, so all you can do is put yourself in the strongest possible position should you ever end up in front of a court.”
This article was written by Jo Stephens and is reproduced from the newsletter of formats producers’ industry body FRAPA.