Is ABC Ripping Off “Big Brother”?

July 31, 2012

On May 10, CBS filed suit against ABC alleging that the reality production “Life in a Glass House” violates CBS’s copyright in the show “Big Brother.” (See complaint at 2012 WL 1648840). CBS argues that ABC copied Big Brother’s “unique interactive features” and “format”–primarily contestants living in a house rigged with cameras who face eviction by their fellow housemates. (Interestingly, CBS itself was sued over the show when the estate of George Orwell claimed the show’s concept was too similar to the author’s novel “1984.” (See complaint at 2000 WL 34443900.)

How successful are copyright claims based on reality show “format”?   Not very.   On WestlawNext, I first ran the following search in All Federal content:

  copyright “reality television”

 The search produces over 30 cases, including copyright decisions involving the shows, “The Biggest Loser,” “The Apprentice” and “Project Runway.”  In each case, the defendants either had the case dismissed or prevailed on summary judgment.

The same query produces over 230 secondary sources, including the article, No More Format Disputes: Are Reality Television Formats the Proper Subject of Federal Copyright Protection?  4 J. Bus. Entrepreneurship & L. 243.

 For further reading on “format” protection in copyright, generally, I ran the following search in Intellectual Property Secondary Sources (IP-TP on Westlaw Classic):

  copyright! /s format “look and feel”

The search produces articles discussing “format” in other contexts, including toy store lay-out and video game “look and feel.”  See 17 No. 6 Cyberspace Law. 8  for a discussion of the Tetris case, where infringement was found.

It will be fun to watch the progress of the “Big Brother” case as the summer reality television season continues.  But at least one legal scholar probably won’t be watching:

 These types of claims have increased recently as the lamentable dominance of “reality” television has resulted in a rapid descent to bottoms not imagined even by Newton Minnow, including, fantastically, claims that the format (or concept) of one reality television has been copied by another. These claims vastly overstate the degree of originality in such works, and fundamentally misconstrue copyright law. They are a perfect illustration of the adage, “if you can’t innovate, litigate.”

2 Patry on Copyright § 4:12.