Can 'Reality' Be Copyrighted?
from the and-even-if-it-can,-should-it? dept
If there's one area of entertainment where originality is seemingly actively discouraged, it would be television. As soon as one particular formula proves itself to be a hit, TV producers begin circling the bandwagons, cranking out imitation after imitation. Rarely has this constant exercise in the "sincerest form of flattery" resulted in a legal battle, but that may all change with an upcoming ruling in a lawsuit filed by Japan's Tokyo Broadcasting System (TBS), alleging that "ABC and Wipeout producer Endemol set out to replicate the TBS shows (namely Takeshi's Castle, Most Extreme Elimination Challenge (MXC), Sasuke and Ninja Warrior), 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."
ABC's lawyers have argued that TV history is littered with a long line of obstacle-course competitions, dating back to the BBC's It's A Knockout, which ran during the '60s, stating 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.'" If there's nothing "unique" (and that's become a very slippery word), then TBS has no legal claim to these elements.
However, ABC executive Howard Davine may have laid some inadvertent groundwork for TBS' lawyers. A leaked memo from 2008 shows that he actively encouraged producers to skirt licensing foreign programs if possible when creating "new" shows for ABC:
"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."
This, in turn, fired up another rights protection group, the Format Recognition and Protection Association, who responded by encouraging producers to help themselves to the "underlying premises" behind ABC/Disney IP, namely Hannah Montana and Mickey Mouse.
The ruling may change the game considerably for producers of reality programs who have shown a preference for "me too" programming with little legal backlash. (Our new favorite metaphoric term for "uncluttered by legislation/legal battles" makes a reappearance):
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.
But does everything need to be licensed? Or are we fine with certain aspects of television being accepted tropes, rather than actionable IP? After all, it's not as if any one producer can claim ownership of Detectives Solving Crimes or Three Cameras and a Laugh Track or even Ghost Hunter Hunts Ghosts. If they're really going to sort this out into compartmentable pieces of litigation, every detective show ever is going to be paying royalties to the estate of Edgar Allan Poe. Even more to the point, defenders of copyright continually tell us that "ideas" aren't covered by copyright -- and yet, clearly, that seems to be what everyone's up in arms about here.
Of course, this doesn't stop The Hollywood Reporter from stating, yes, do exactly that when it comes to making sure that these kinds of "ideas" are covered by the law.
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.
Maybe. But my gut feeling is the only thing "evolving" will be various IP law firms, rather than television itself.
(Hat tip to Mr. LemurBoy for sending this in.)
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Filed Under: copyright, reality, reality tv
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Re:
I like the SpikeTV version (MXC). Derivative, but just as funny. Talk about wholesale copyright infringement (though MXC is actually joint owned by TBS and RC Entertainment.) The original (Takeshi's Castle) wasn't a comedy.
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I don't see this as a big deal . . .
Frankly, the 'smoking gun' memo speaks to ABC's diligence in checking to see if something needs to be licensed or not. It's not earth-shattering.
The real question is if their intent to use the elements of foreign shows and then redirecting Google searches to ABC equivalents is anti-competitive or unfair competition.
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Re: I don't see this as a big deal . . .
Agreed. I don't see how that's a smoking gun. Now if the memo had said to not license anything and to infringe on as many copyrights as possible, I'd probably think differently. But's the exact opposite of that.
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Re: I don't see this as a big deal . . .
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Re: Re: I don't see this as a big deal . . .
In that situation there might be claim for trademark infringement and unfair competition. The trademark doesn't even have to be a federally registered trademark for this to be the case.
I think, ultimately, this is a case likely going nowhere unless there is another element such as breach of implied warranty or contract. For example, if the Japanese folks or someone representing them pitched the idea to ABC, ABC declined, and THEN ABC proceeded to copy the ideas there might be a claim.
On copyright, however, there is no claim, and the only way to succeed through copyright is to confuse the court.
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Re:
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Who Cares
Corporations like Apple and Google constantly throw money at the Gov't to influence Gov't policy.
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Re: Who Cares
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Heck, even the idea for Shakespeare's Romeo and Juliet was "taken" from Matteo Bandello's novella The Tragical History of Romeus and Juliet.
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Re:
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If ever
I say we don't stop them from going down this road, and hopefully their IP cost will rise so high they stop producing this stuff.
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Re: If ever
I know you're probably mostly joking, but just be careful! You're arming the trolls.
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Time for an Association Association
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This is partly why, fundamentally, routing around copyright through CC and other various licenses and through boycotting monopolized content isn't a solution. Doing that will only get the bought government to broaden the protections to include more so that the industry still remains protected from such alternatives. Fundamentally, we must strongly protest these oppressive laws much more directly.
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Re:
In fact, that's what seemed to happen over the years. Regulatory capture (ie: copyright, FCC regulations, etc...) have only expanded to cover more as technology has made competition more available, which ends up counteracting the competition that the technology enables.
Fundamentally, the public needs to be more proactive in resisting and protesting this tyranny.
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Re: Re:
http://www.techdirt.com/articles/20110609/08150714635/score-one-trolls-supreme-court-say s-congress-intended-it-to-be-very-difficult-to-invalidate-patents.shtml
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False Assertion of Copyright
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So?
That seems perfectly resonable to me. Why would you license something you didn't need to? That would just be bad business.
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What we need to do is get rid of this corporate wild west mentality, where the corporations can arbitrarily pass whatever laws they want and do whatever the heck they want without any obstacles, punishment, or rules whatsoever.
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