June 12, 2012 2:29pm PT by Eriq Gardner
CBS Continues Attack on ABC's 'Glass House' in New Court Filing
CBS continues efforts to stop the upcoming debut of ABC's upcoming reality series Glass House, which CBS argues is too similar to its long-running hit Big Brother.
On Tuesday, CBS submitted a new court filing that portrays its legal adversary of being short on the merits and inconsistent in making the case that Glass House isn't a copycat.
CBS says that it deserves a temporary restraining order because ABC has violated copyright and misappropriated trade secrets through the hiring of 30 former Big Brother employees, including showrunner Kenny Rosen, who was formerly a producer on Big Brother. On Monday, ABC detailed the case against the injunction, which CBS hasn't wasted any time in making a reply.
ABC's supposed failings are listed by CBS in Tuesday's filing, including the alleged concession of access to its intellectual property and the failure "to identify a single show (other than their own) that employs the same compilation of elements and expression that Big Brother does."
CBS says that what ABC has "done thus far is continually change their story on infringement," from whether Glass House is locked in concrete final form to the derivation of the show. CBS says that Rosen has tried to defend the show by saying it was really based on The Hunger Games rather than Big Brother, but now ABC "abandon(s) that position."
To avoid a TRO, ABC has argued that the "processes and techniques [are] already well known to everyone who has ever worked in reality television" and that none of the alleged similarities between the shows constitute copyright protectable elements.
In reaction, CBS says that ABC is trying to "rationalize" theft.
"CBS is not complaining about the copying of an idea," says the network in its reply. "What Defendants did here was entirely different: They had an extraordinary level of access to Big Brother, used it to produce Glass House, then lifted not just a few of Big Brother’s elements, but the entire protectable expression and compilation of them."
CBS says that rules differences between the two shows listed by ABC are "insignificant distinctions" and says that Big Brother host Julie Chen can't be proclaimed as a serious difference. "Chen rarely appears on the show," CBS says about its own talent. "While she may give instructions during the show, Glass House uses a very similar method."
The fact that Glass House relies on many former Big Brother employees is probative of the copying, according to CBS' court brief: "It is not as if Defendants hired 30 random employees from one reality show to work on a run-of-the-mill reality show; they targeted 30 key people from the only successful fast-turnaround “house reality” competition show to comprise the key production staff of a copycat show."
ABC had also argued on Monday that the judge should turn down CBS's requested TRO for the same reasons a court in 2004 rejected CBS' attempts to use its Survivor to knock out I’m A Celebrity, Get Me Out Of Here!
"But there, the expressive quality of the two shows, among other facts, set them apart," replies CBS, saying Survivor was found to be dramatic and I'm A Celebrity determined to be comedic. In this instance, CBS says not only are Glass House and Big Brother alike in expression, but that previous case "lacked the additional clear-cut evidence of infringement here—namely, the mass poaching of critical employees, along with admissions from Show Runners like Rosen that the newer show shares all the key elements of the original."
ABC today began live streaming Glass House. The premiere is scheduled for June 18, but U.S. District Judge Gary Fees will likely issue a ruling on whether Glass House can air as planned first. ABC says it has spent $16 million to promote the premiere on Monday night, and that it will suffer enormously if the judge intervenes, but CBS waives off the "supposed parade of horribles," saying any harm to ABC is the result of the company's own alleged illegal conduct, adding the harm "would undoubtedly be worsened if Glass House were pulled off television midseason, after the show began airing."