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Jun 16 2012

CBS’s Loss in “Glass House” Case Shows Difficulty in Protecting an Idea

Not a week goes by that I don’t get an email or phone call from a prospective client wanting to know how to protect their great “idea” for a show, product, play, movie, song, etc etc and I have to tell them that it’s almost impossible to do so. Hopefully, they will read Judge Gary Feess’ recent decision in a case brought by CBS against ABC over ABC’s new reality TV show “Glass House” to see that I am not being overly pessimistic just realistic.

The premise of Glass House is identical in most ways to CBS’ smash reality TV show pioneer “Big Brother.” Strangers are thrown to together into a house loaded with cameras so we can see their every move. They then gather together and talk endlessly about the mundane things we have seen them do during the show and then one of them gets thrown out of the house. Last person standing wins money. A perfect realization of Philip Roth’s description of modern television: “The over-dramatization of routine human emotions.” CBS brought a motion for an injunction trying to stop ABC from airing the first episode of Glass House this coming Monday saying that the show infringed on its copyright.

In denying the motion, and indicating that the case is likely not going to go well for CBS, Judge Feess reminded the network that you cannot copyright an “idea,” just your specific expression of that idea. The basic premise behind Big Brother is too basic a concept without enough specific expression of a unique idea that merited protection. ABC’s tweaks to the general concept – like having the audience vote people out of the house as opposed to fellow cast members doing the voting – were enough of a difference to make ABS’ chow a different expression of the same unprotectable idea. (CBS by the way didn’t develop the idea, they licensed the name and concept from the Dutch TV production company that came up with it). NBC didn’t even bother trying to sue FOX TV over its new dating game “The Choice” even though its spinning chairs, celebrities selecting folks sight unseen and its very name clearly copy NBC’s “The Voice.” You would think CBS would have learned this basic IP rule after it had already lost a lawsuit against ABC over “I’m A Celebrity Get Me Outta Here” which CBS claimed was a rip off of “Survivor.” But sometimes big companies like to sue just for the heck of it.

So please remember, no matter how good you idea is, once its out there, folks can copy it and put their own spin on it. The secret is to make sure that your version of the idea is the best version of it. I highly doubt Glass House will be as successful as Big Brother which has ran for 13 years here, just as Survivor wasn’t damaged by “Get Me Outta Here” and “The Voice” will likely outlast “The Choice.” So making it better is much more important than making it first.

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