Can 'Reality' Be Copyrighted?

from the and-even-if-it-can,-should-it? dept

Thu, Jun 9th 2011 2:26pm — Tim Cushing

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

26 Comments

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Marcus Carab (profile), 9 Jun 2011 @ 1:37pm

Can't wait for Nothing v. Seinfeld...
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crade (profile), 9 Jun 2011 @ 2:06pm

I loved Takeshi's Castle. Lets ensure that we can never have another good show like that one ok? Otherwise there will be no incentive to make the original Takeshi's Castle and I will be sad since I will have missed out.
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John William Nelson (profile), 9 Jun 2011 @ 2:44pm

I don't see this as a big deal . . .
The question is less of copyright and more of trademark and trade dress. You can't copyright ideas, nor can you copyright facts. However, it might be possible unfairly compete against another by stealing their schtick.

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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Steven (profile), 9 Jun 2011 @ 3:02pm

Something tells me that 'redirecting Google searches' is code for 'they bought ads'
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Jimmy, 9 Jun 2011 @ 3:04pm

Who Cares
Why is this even a story? Nobody cares much anymore.

Corporations like Apple and Google constantly throw money at the Gov't to influence Gov't policy.
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Ima Fish (profile), 9 Jun 2011 @ 3:18pm

I've said it before, the Fugitive. The Hulk, Kung Fu, The Pretender, and Renegade all had the exact same premise: An innocent person running from the law who stops and helps people every week. Right before he gets caught at the end of the episode, he somehow manages to sneak away to help the next person in the next town.

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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Ima Fish (profile), 9 Jun 2011 @ 3:21pm

Re: 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."

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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crade (profile), 9 Jun 2011 @ 3:25pm

Re:
No, it's code for, they put wipeout related terms in their keywords.
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crade (profile), 9 Jun 2011 @ 3:26pm

Re:
Hey, they all stole that from the littlest hobo!
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crade (profile), 9 Jun 2011 @ 3:29pm

Re: I don't see this as a big deal . . .
As far as I understand, trademark only applies if they are pretending to be Takeshi's Castle, which they obviously aren't. Creating my own cartoon with a mouse in it and adding Mickey, Tom & Jerry and Mighty Mouse to the keywords so that people searching for those things may also see my alternative offering is not deceptive in any way. It's the electronic equivilent of opening your store close by the other guy's so his traffic will notice you. If this were just a regular trademark issue, you're right it wouldn't be interesting at all.
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cofiem (profile), 9 Jun 2011 @ 3:29pm

Hmmm.... I know I shouldn't, but this just cries out for a link to tvtropes...
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johnjac (profile), 9 Jun 2011 @ 3:34pm

If ever
If ever there were a group that I'd like to raise their cost by locking up IP rights, I would say "Reality TV" might be it.

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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Marcus Carab (profile), 9 Jun 2011 @ 3:57pm

Re: If ever
As fun as it can be, indulging in subjective judgements of art is always a bad idea when talking about copyright... that is the exact approach that IP maximalists use to brush off DJs, sample-based producers, appropriation artists and just about anyone else they don't like.

I know you're probably mostly joking, but just be careful! You're arming the trolls.
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ltlw0lf (profile), 9 Jun 2011 @ 4:15pm

Re:
I loved Takeshi's Castle. Lets ensure that we can never have another good show like that one ok? Otherwise there will be no incentive to make the original Takeshi's Castle and I will be sad since I will have missed out.

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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Josh Taylor, 9 Jun 2011 @ 4:20pm

Does Turner Broadcasting realize that "TBS" is the Japanese Broadcasting Company's trademark? Maybe they should sue Turner for that.
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Grae (profile), 9 Jun 2011 @ 4:34pm

Time for an Association Association
I'm surprised there isn't an "Association Association" to help track and manage all these associations! Seriously, how many do we need? I just did a Google search for all .org sites with the word association, and came up with 320 million results. According to the US Census that's more than the number of US Citizens.
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Anonymous Coward, 9 Jun 2011 @ 4:49pm

Re: Who Cares
*shakes head sadly*
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Anonymous Coward, 9 Jun 2011 @ 5:38pm

Can fantasies be copyrighted? If I have a fantasy and it's vaguely similar to someone else's, am I infringing?
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John William Nelson (profile), 9 Jun 2011 @ 6:05pm

Re: Re: I don't see this as a big deal . . .
Trademark might go as far as to apply to the individual challenges. I can't speak for Takeshi's Castle (I think I've seen it, but don't remember), but I have seen Wipeout USA and Wipeout UK. Imagine if Wipeout USA didn't license the name from the UK folks but kept almost all the same things.

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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Anonymous Coward, 9 Jun 2011 @ 8:24pm

We're reaching a day where anyone can start their own show. This additional competition essentially makes monopolist MSM content less relevant and reduces the price of such content. Monopolists don't like it. and since the government likes to serve the interests of monopolists (partly since monopolists can funnel some of those excess monopoly rents towards political campaigns, which makes it easier for politicians who receive these excess campaign contribution monopoly rents to get elected in opposed to those who don't, and also partly because of the politician - industry revolving door), placing a monopoly on a specific piece of content isn't enough. People will simply ignore that content and find content without such monopoly rents. This makes the monopolist less relevant and so it's harder for that monopolist to charge such high prices. So what's the solution? Start granting broader, more generalized monopolies. and that's what our government is starting to do. A monopoly on a specific piece of work is no longer sufficient to ensure that these meritless monopolists can collect excessive monopoly rents. Broader, more generalized monopolies are now needed.

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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Anonymous Coward, 9 Jun 2011 @ 8:30pm

Re:
So, essentially, if we try to route around copyright law through CC licenses, the govt will simply expand IP law to include more in such a way as to suppress such alternative routes.

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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Anonymous Coward, 9 Jun 2011 @ 9:58pm

Re: Re:
and here is another example of expansive regulatory capture.

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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Anonymous Coward, 9 Jun 2011 @ 11:32pm

False Assertion of Copyright
ABC will win this one, easily. They have only to point out that copyright only protects expression not ideas. TBS is attempting to copyright an idea. Sorry TBS, you have read the legislation wrong. You lose, costs are awarded against the plaintiff. Next!
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Svante Jorgensen (profile), 10 Jun 2011 @ 2:56am

So?
"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."

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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insider, 10 Jun 2011 @ 11:42am

I heard that ABC first went after the Japanese show but found the fees too expensive so they then just ripped it off. Apparently there's a sales tape out there from Endemol where they just show clips of the Japanese shows and say "We'll give you this but call it Wipeout so you don't have to pay fees to the Japanese!"
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Anonymous Coward, 11 Jun 2011 @ 1:48pm

"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. "

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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