Majority Opinion: ABC is not guilty of copyright infringement
CBS, the company that films and produces “Big Brother” filed a lawsuit against ABC for creating an allegedly rip-off show, “The Glass House,” which—CBS claims—violates its copyrights in June 2012. In case you haven’t watched “Big Brother” before, check out some season highlights.
You get the idea—hot people, inevitable drama, fierce competition (contestants compete for a six-figure cash prize) all packed into one big house isolated from the rest of the world for a couple months makes for American reality television par excellence, especially with camera crews recording contestants’ every gesture 24/7. The moment the contestants enter the house and the door is closed, they are left to their own devices. Producers and camera crews provide no input to the contestants but instead act as invisible observers for the show’s audience. There are no scripts or prescribed plots, though there are “challenges” during the show just in case cast members aren’t meshing well for the show or to stir up more drama just for fun. “Big Brother” has run for thirteen seasons and counting.
“The Glass House” is quite similar: about a dozen contestants of mixed gender and ethnic backgrounds live together and compete for a large sum of cash. Camera crews record everything, and—like in Big Brother—the public can interact with contestants and influence the show through online media.
Okay, so the shows are similar. But how do we determine if ABC infringed copyright?
Now the legal stuff begins. Luckily, these sorts of allegations aren’t new, and past court decisions have arrived at certain conclusions regarding evaluating copyright that can help inform our decision here. In particular, Rice v. Fox Broadcasting Co., from 2003 cited the “substantial similarity” comparison established in a 1994 lawsuit used to assess copyright violation. The comparison has two parts: an intrinsic test and an extrinsic test. The intrinsic test is softer and more intuitive. It basically tests whether any reasonable audience would find the two pieces under question similar with respect to their underlying ideas and concepts. The extrinsic test, on the other hand, is harder and more specific. The extrinsic test is an impartial, evidence-based comparison of the “‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’” (Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir. 1994)). Both the intrinsic and extrinsic tests must favor “substantial similarities” between the two pieces under consideration in order to establish true copyright infringement.
The intrinsic test is easy. Clearly, the two shows are pretty similar, and any ordinary viewer would recognize these them. The extrinsic test is more tricky, but still rather straightforward, as we shall soon discover. It will help to review the extent and scope of copyright protection. As per federal copyright law, 17 U.S.C. § 102(b) states, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Given that the extrinsic test explicitly requires a comparison of the plots, themes, moods, settings, etc. of “Big Brother” and “The Glass House,” the only way in which the extrinsic test will favor “substantial similarity” between the two works is if the similarities that emerge from the aforementioned components of the show are articulable, concrete, and specific. This is where “Big Brother” fails. To understand why, we need to do recap some details.
1) In its statement against ABC, CBS underscores that “Big Brother” is the result of years of trial and error with regard to the selection of contestants, filming, editing, and generally structuring the show. In particular, CBS claims that ABC has stolen its “trade secrets” and basically blames ABC of stealing them and using them in “The Glass House.”
2) CBS seems to pride itself on the manner in which it has learned to create a show out of something entirely unpredictable. Because there are no scripts and set plots, nothing is predetermined ahead of time, but their “trade secrets” and other strategic decisions—the house with an attached pool/spa, character choices, etc.—enable them to create a product that sells.
CBS failed to demonstrate copyright infringement on both of these counts. First, the trade secrets it has developed are apparently pretty standard practices in the industry. Filming people 24/7 isn’t a new idea; in fact, the idea was first introduced to the media in Amsterdam during the early 1990s. And the other technical feats that CBS claims to have developed are not copyright protected. Moreover, there simply fail to exist any specific, articulable similarities between the shows. Let’s take, for instance, an argument CBS made against ABC. CBS claimed that ABC’s character choice too closely resembled theirs in the way character dynamics played out. If producers from CBS had told contestants in “Big Brother” to act in a well-defined, specific way, and if these same behaviors were present in “The Glass House,” there might be some evidence of specific, articulable similarities between the two shows. However, because there is no plot in “Big Brother” and because the creators and producers of the show have no influence over these interpersonal dynamics the moment the doors to the “Big Brother” house are closed, CBS can’t blame ABC for violating their copyright. The lack of plot, scripts, and other such specific features of the show doesn’t permit CBS to fault ABC for their own related events in “The Glass House.” Thus, the “substantial similarity” comparison fails the extrinsic test, and ABC has not been found guilty of copyright infringement.
Dissenting Opinion: ABC has committed copyright infringement
While a lot of people think that CBS’s lawsuit against ABC was anti-competitive and merely a sign that CBS was upset another network was trying to steal their audience, I – or at least, in my incarnation as Justice Herz-Roiphe – was inclined to see the situation differently. It’s true that CBS did include a lot of fluff in its complaint alleging copyright infringement against ABC – things like claiming that ABC was infringing because it was using the same camera angles as CBS did in Big Brother. However, putting aside all the fluff, it turns out that CBS has a legitimate gripe.
The logic used by Judge Feess in denying CBS’s application for a temporary restraining order was flawed. Judge Feess wrote that “CBS contends that the key ‘articulable similarities’ between the two shows are the ‘plot, themes, dialogue, mood, setting, pace, characters, and sequences of events’…Big Brother does not, as a concept, readily exhibit any of these elements.” Judge Feess argued that, because Big Brother was an unscripted reality show where all of those elements were determined by the contestants on the show, he could not find infringement. On this count, Judge Feess is clearly wrong: the producers decide which parts of the “story” are included in the episodes that air on television. With thousands of hours of footage available to them, it is easy for the producers to selectively edit the show in order to create compelling narratives. These narratives may be exaggerated versions of conflicts that do actually take place in the house, but they may also be wholly fictional, made clear to the viewer by selective editing and using music to cue emotions to the viewer. In this manner, Big Brother exhibits – and the producers have control over – a plot, specific themes, and a specific mood.
The characters who appear on our televisions are not the same as the people who are filmed on the set – anyone who has been on a reality show can tell you as much. The characters who appear on television are fictional, and by virtue of extensive editing, they are entirely creations of the producers. As such, it falls to us to determine if the fiction that the producers of Glass House created was “substantially similar” – to use the legal jargon – to that created by the producers of Big Brother. We must determine that it is substantially similar both extrinsically (in terms of overall concept, mood, and feel) and intrinsically (in terms of plot, themes, dialogue, mood, setting, pace, characters, and sequences of events). Extrinsically, there is no doubt that the two shows are substantially similar. The concepts – putting strangers together in a house wired with cameras where they compete, strategize, and have romantic relations – and the attendant “feels” of the show are essentially identical. Intrinsically, the shows have many substantial similarities as well. The characters – not the actual recruited to be on the show, but the fictional characters that the producers make out the footage of them – are very much alike, as are the settings (houses with many cameras), themes (backstabbing, romance, competition), and sequences of events (competition, vote for elimination, reaction to that vote).
Imagine that we were presented with a series of books about a British wizard who attended a school of magic with a wise headmaster and a suspicious potions teacher and had to fight off a dark evil wizard. There is little question that we would be very inclined to find copyright infringement on the Harry Potter series. It is the same here. The fact that the works of fiction in question were created by using “reality” techniques makes no difference at all.