Courts are gaining on TV networks in the race for reality programmingTelevision purists who grumble over the proliferation of reality programs should stay away from their local courthouse. Lately, it seems that every other new case hinges on an unscripted TV show.
Sure, Harvey Weinstein is getting most of the attention for the smackdown delivered in the form of a preliminary injunction last month preventing the Weinstein Co. from sashaying "Project Runway" from Bravo to Lifetime. It's certainly rare to see a judge pointedly question the dealmaking tactics of a top Hollywood executive. At one point he scolded Weinstein for inking a deal with Lifetime in February but for two months leading NBC Universal's Jeff Zucker to believe that "TWC had not signed a deal with another entity. …" Ouch.
Even beyond "Runway," though, this lucrative genre has become increasingly litigious. Mark Burnett and his former attorney and business manager Conrad Riggs are duking it out "Contender"-style over the millions that Burnett's reality empire has generated. RDF Media was sued in June by three producers who claim that the production company cut them out of a deal to create A&E's "The Two Coreys" with Corey Haim and Corey Feldman. A trio of women even sued the G4 network for $1 million this summer after being featured without their consent in a segment called "The Great Cougar Hunt," prompting their attorney to define for the judge that a "cougar" is "a sexually cunning 35+ female who is on the hunt for a much younger energetic male." Thanks for that clarification.
More significant — at least legally speaking — are the cases challenging the untamed frontier of reality format development. Scoff if you must, but unscripted shows are "literary works" under copyright law. Yet nearly a decade after "Survivor" launched the current boom, we've crowned seven American Idols and betrothed 12 Bachelors while creating almost no specific legal standards for how much reality shows can borrow from one another.
CBS and Burnett tried to protect the "Survivor" format against such early knockoffs as Fox's "Boot Camp" and ABC's "I'm a Celebrity, Get Me Out of Here!," but those cases settled without gaining traction. Simon Fuller, creator of the global "Idol" phenomenon, sued "Idol" production partner FremantleMedia and judge Simon Cowell in 2004 over the comically similar "The X Factor." ABC and RDF claimed that Fox's "Trading Spouses" stole its concept from "Wife Swap." DreamWorks TV and Burnett argued that Fox's "The Next Great Champ" was a direct rip-off of "The Contender." Howard Stern even claimed that ABC's 2003 Lorenzo Lamas laser-pointer show "Are You Hot" was lifted from his radio segment "The Evaluators."
None of these cases has generated industry-changing legal precedent, in part because the "substantially similar" standard under copyright law is so tough to meet. Like in the scripted world, ideas mean next to nothing. I can create an "American Idol" for chefs or fashionistas or barnyard animals as long as I don't copy the exact expression of the show — which, in the reality context, is much tougher to prove than comparing two scripts to identical scene structures or dialogue.
"One after another, people have been unable to protect their formats," says Lee Brenner, a partner at White O'Connor in Los Angeles who has written about copyright claims over reality TV. Development deals or oral pitch meetings more easily give rise to claims. "But in the copyright world, plaintiffs are going to have a real hard time."
It doesn't mean they won't keep trying. This month, Tokyo Broadcasting System upped the ante against ABC and superproducer Endemol, claiming that the summer hit "Wipeout" infringes six separate Japanese competition shows. Watching "Wipeout" and such shows as "Most Extreme Elimination Challenge," "Takeshi's Castle" and "Ninja Warrior," the similarities are pretty striking. "Most extreme" also describes the potential damages because Endemol is selling the format all over the world in direct competition with the TBS shows.
Still, it's far from clear whether combining elements of a bunch of foreign game shows should constitute copyright infringement. It might merely show that the competition genre, like the world of reality television itself, is so generic and evolving that everyone should be able to steal from everyone else.
Matthew Belloni can be reached at matthew.belloni@THR.com.