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In 1996’s Swingers, Vince Vaughn, Jon Favreau and their fellow wannabe actors debate whether Quentin Tarantino ripped off a slow-motion sequence in Reservoir Dogs from Martin Scorsese. “Everybody steals from everybody,” Vaughn’s character announces. “That’s Hollywood.”
The Swingers maxim is true throughout showbiz, but perhaps it most accurately describes one particular segment of Hollywood: Reality TV. Since Survivor kicked off the U.S. boom in unscripted, narrative programming 11 years ago, the niche has been littered with more copycat shows and derivative concepts than hit original formats. American Idol, the official U.S. version of Britain’s Pop Idol, spawned countless singing elimination shows. History’s Pawn Stars begat Hard Core Pawn, Pawn Queens and the rest. Producers of ABC’s Wife Swap once sued the makers of Fox’s similar family switcheroo series Trading Spouses.
Owing to what might be a knee-jerk reaction against protecting the creativity in a genre dubbed “reality,” as well as a lack of clarity in copyright law, many producers believe there is a Wild West mentality in the unscripted world that has given rise to a culture of rampant, unlicensed borrowing. Not helping matters was a leaked 2008 memo from ABC executive vp Howard Davine, urging execs and showrunners to “carefully scrutinize” whether licensing foreign formats was “necessary or appropriate” before going forward with similar shows, especially when they might only be interested in the “general, underlying premise.” The memo didn’t specifically target reality shows, but it drew the ire of the Format Recognition and Protection Association, an international group pushing for intellectual property rights for unscripted TV formats. FRAPA suggested that producers consider helping themselves to the “underlying premise” of Disney’s Hannah Montana and Mickey Mouse.
Against that backdrop, a lawsuit coming to a head in U.S. District Court in Los Angeles might determine where a court will draw the line on copyright infringement in reality TV. The case, filed in 2008 against ABC by Japan’s Tokyo Broadcasting System (TBS), claims that ABC’s wacky obstacle-course competition Wipeout copied original elements of six TBS shows, including Takeshi’s Castle, Most Extreme Elimination Challenge (MXC), Sasuke and Ninja Warrior. The suit alleges that ABC and Wipeout producer Endemol set out to replicate the TBS shows, lifted popular components and even sought to manipulate Google into sending traffic for search terms “Takeshi’s Castle” and “Ninja Warrior” to a Wipeout-sponsored link. The case, which is being litigated by showbiz powerhouses Stanton “Larry” Stein (for TBS) and Patty Glaser, with former partner Devin McRae (for ABC), has a key summary judgment hearing this summer after a May 12 mediation failed to produce a settlement.
Crucial to the case is which elements of the TBS shows are unique enough to warrant copyright protection (what lawyers call the “protectable” vs. “nonprotectable” elements). In court papers, ABC argues that TBS “remarkably claims copyright protection in obstacles and obstacle concepts ubiquitous in the public domain, such as ‘rope swings,’ ‘mechanical bulls’ and ‘pole vaults.’ ” The network points out TV’s history of obstacle-course competitions, from the BBC’s It’s a Knockout in the ’60s to ABC’s Battle of the Network Stars in the ’70s to Fear Factor, the 2001-06 NBC series from Endemol, produced by Wipeout co-creators Matt Kunitz and Scott Larsen. Wipeout, ABC argues, uses only general scenes a faire, rather than any unique, and thus copyrightable, expression.
Considering the limited number of reality-TV tropes available to producers, ABC makes a compelling argument. Still, when Judge Margaret Nagle sits down to watch Wipeout and the six TBS shows (a good reason to give federal jurists raises), she will likely notice alarming similarities. Wipeout‘s “Cookie Cutter” contraption appears nearly identical to MXC‘s “Rotating Surfboard of Death,” as do the wisecracking hosts. Ditto Wipeout‘s “Hopping Blocks” and Sasuke‘s “Six Jumps.” And so on. How many similarities are too many?
Therein lies the larger question beyond the minutia of the Wipeout case: What aspects of any reality show are subject to legal protection? In a genre where the traditional plot and character aspects of scripted works have been replaced by unique formats, the law might need to evolve to protect the creativity that informs this powerful segment of the TV world.
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