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Despite a judge’s order in July denying an injunction and notwithstanding disappointing ratings for the ABC show, CBS is going forward with its lawsuit that alleges copyright infringement and misappropriation of trade secrets. This week CBS amended its suit, and after a delay because one of the appendixes with a “highly confidential document” was filed under seal, the new complaint has been made public.
The filing is similar to the first lawsuit, but because CBS lawyers have had a chance to extensively study the ABC show, the complaint has 10 additional paragraphs specifically devoted to “similarities” in plot, characters, themes, mood, dialogue, setting, pace and sequence of events. CBS says ABC did not merely take “stock ideas” or “scenes a faire,” but “stole every aspect of Big Brother‘s tangible creative expression.”
The dispute erupted in early June as ABC prepared its show about contestants living together and competing for a $250,000 prize.
CBS contends that the show is a copycat and was outraged that its network competitor had hired former Big Brother employees, including showrunner Kenny Rosen, who was a producer on Big Brother.
The plaintiff filed a motion for an emergency restraining order before the show premiered but had to rely on depositions — including a seven-hour grilling of Rosen — and web footage to push its case that from camera angles to the way it introduces characters to viewers, the show is substantially similar to its own program.
But on June 15, U.S. District Court Judge Gary Allen Fees denied CBS’ attempt to stop Glass House from airing on grounds that the network hadn’t demonstrated a likelihood of success (saying production techniques are not a form of intellectual property), that TV employees are permitted to take their knowledge from one show to the next and that there would be irreparable harm to ABC in the form of investments and jobs lost if the show was halted.
CBS promised to press ahead despite the setback, and the network has lived up to its word.
In an amended complaint, CBS says “the striking and substantial similarities between the two series have not been lost on the media, who have reported that ABC ‘is copying Big Brother‘ and ‘knocking off’ the highly successful show that CBS has been broadcasting since 2000.”
Of course, many of those stories were generated by the lawsuit itself, but the amended complaint goes on to state what CBS believes is copyrightable expression:
“In fact, the two series are virtually identical. For example, both shows are reality television competitions in which approximately a dozen non-celebrity individuals of mixed gender and ethnicity live in a large studio-bound ‘house,’ physically isolated from the outside world; occupants form strategic alliances and participate in challenges in an effort to win perks and survive eviction votes; the narrative is an unfolding dramatic story; the last contestant remaining wins a fixed prize; and viewer input online and via text messages impacts the unpredictable, constantly evolving narrative.”
ABC hasn’t yet responded to the legal development, but at Friday’s ABC executive session at the Television Critics Association’s summer press tour, ABC entertainment president Paul Lee said he had no regrets about making what he called was “a big swing” at a voyeuristic reality show no matter that it put corporate parent Disney into a big legal battle.
“Oh, it was totally worth it,” he said. “We were right, in the lawsuit, and that lawsuit is over.”
Lee was wrong on the latter point. It’s not over.
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