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.)

Filed Under: copyright, reality, reality tv

Lawyers For Guantanamo Detainees Not Allowed To Look At Important Leaked Evidence

from the this-is-stupid dept

In the business world, if you sign a non-disclosure agreement, it's well accepted that if the information covered in that agreement later becomes public through other means, you are no longer bound by the agreement. This makes sense. After all, why should anyone be forced to clam up about information that's already public. And, yet, for no good reason at all, it seems our government prefers a system where everyone is supposed to keep their head in the sand about public info. Witness the mind-numbingly bizarre claim that lawyers for Guantanamo detainees are not allowed to look at the documents that a bunch of newspapers released earlier this week (the documents allegedly came from Wikileaks, but apparently Wikileaks itself did not release them to the newspapers). Yes, these documents are all over the news and are widely available from multiple sources... yet the government has warned the lawyers not to look:

On Monday, hours after WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantanamo defense lawyers that the documents remained legally classified even after they were made public.

Because the lawyers have security clearances, they are obligated to treat the readily available files "in accordance with all relevant security precautions and safeguards" -- handling them, for example, only in secure government facilities, said the notice from the department's Court Security Office.

The NY Times, rightly, calls this "absurdist." I'd call it out right stupid. It's head-in-the-sandism. If the information is public, live with it. It's public. Pretending that public information is not public doesn't help anyone. It just makes it look like the government is in denial and not dealing with reality. Frankly, I'd much prefer a government that can deal with reality to one that tells everyone to cover their eyes and ears and pretend reality doesn't exist.

Of course, this is not the first time we've seen this. With just Wikileaks, we saw it a few months ago when parts of the federal government barred employees from looking at the site and its leaks, using the identical rationale. So, despite the fact that everyone else in the world could easily see those documents, the ones who it might impact the most have to pretend that the documents are not actually public.

It's government playing make believe.

It's also not unlike the ridiculous hoops the government made lawyers go through in the al-Haramain case, in which the government accidentally leaked a document proving that it had wiretapped without a warrant. And despite the fact that the document had been leaked, it was required that lawyers for al-Haramain pretend the documents were still secret, leading to an absolutely insane process by which the lawyers had to destroy all of the copies they had of this info, and could only refer to it obliquely from memory, with a Justice Department official watching over them, with the ability to force them to stop talking about certain aspects.

None of this makes any sense. Just like we have "security theater," this appears to be "classification theater." These documents are not classified any more. Period. Pretending they are is a charade that the government is putting on which everyone knows is a lie. Isn't it time we had our government stop pretending and start dealing with reality?

Filed Under: government, guantanamo, leaks, reality, secrecy

New Pope Confuses Technology Reality And Fiction

from the fixed-that-for-you dept

Slashdot drew our attention to an article about the Pope warning of the dangers of new technologies, that came with the title: New technologies confuse reality and fiction: Pope. However, I'd argue that flipping the words around a bit, as I did in the title to this post, seems a bit more accurate. For years, with pretty much every new media/technology invention there's been some sort of moral panic about how it's somehow harming people's ability to tell truth from fiction. And there never seems to be any sort of evidence to support this. In fact, it seems that the only people still confusing reality and fiction are those who insist that technology has this magical property of ruining people's ability to tell reality from fiction.

Filed Under: fiction, pop, reality, technology