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'The Glass House' Case Continues: Making Sense of ABC's Latest Argument

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Jun 12, 2012 | 12:22pm EDT

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UPDATE: In response ABC's release of the described document highlighting The Glass House's legality, CBS has published a defense of its claims, detailing why it insists the developing reality series does in fact violate the parameters of the law.

Among the arguments included in the article are the following:

CBS claims that it will be "Irreparably Harmed Without Injunctive Relief" by the creation of The Glass House. The document defines the merit of the Temporary Restraining Order (TRO) that it has requested against the production of The Glass House, citing the purpose of such an order as the maintenance of the "status quo" — in this case, CBS' subsistence without the infringing property that the network deems The Glass House to be.

The network brings up the issue of ABC's past and continued use of CBS' trade secrets, per The Glass House creator Kenny Rosen's former work on Big Brother, in the creation and development of The Glass House, highlighting the fact that CBS "requires individuals with access to its trade secrets to sign Non-Disclosure agreements."

Additionally, CBS concludes that due to ABC's admission that The Glass House is presently in production, the latter network's claim that no copyright infringement had taken place due to the project not taking form yet is nullified.

Click here to read the entire document, courtesy of Deadline.

EARLIER: It’s been hard to read a splinter of TV news without encountering a story about CBS’ ongoing legal battle with ABC’s strangers-in-house reality series The Glass House. CBS maintains that Glass House copies Big Brother’s format and that executive producer Kenny Rosen is making use of CBS trade secrets he obtained while working on Big Brother. On June 8, CBS filed an application for a restraining order, and since that time ABC has filed a rebuttal to CBS’s claims. It states that “CBS also seeks a wholly unprecedented restraining order based on the alleged misappropriation of processes and techniques already well known to everyone who has ever worked in reality television.”

But there are 31 pages in this document (and they all make use of more legalese than that last statement), so what do we really need to know about ABC’s argument? We broke down the biggest elements of the document so you don’t have to:

A. This Has Happened Before, and CBS’ Argument Didn’t Hold Up Then Either

In 2003, CBS sued ABC over a series called I’m a Celebrity, Get Me Out of Here, claiming the series directly copied CBS’ hit show Survivor. The judge ruled that I’m a Celebrity added elements not belonging to Survivor, thus rendering the combination incongruent. Much like that case, The Glass House possesses many Big Brother elements, but adds many distinct interactive, structural, and procedural elements into the mix.

B. The Stolen “Trade Secrets” Are No Secret

ABC’s attorney posits that any trade secrets made available to fans and journalists who are frequently given tours of the set cannot be considered “secret.” He also points out that all confidential documents (Contestant Hand Book and Master Control Room Schedule) were not only several years old, but returned to CBS and not used for final rule books or control room schedules. Plus, all employees “poached” from Big Brother have worked at either ABC or Rosen’s Hell’s Kitchen between working at Big Brother and being hired on Glass House.

C. Any Harm To CBS Can Only Be Assessed After Both Series Have Aired

If CBS loses viewers due to The Glass House airing during the same season as Big Brother, financial damages can be assessed at that time. In addition, ABC stands to lose $16 million in promotion costs should the program be delayed, and $27 million in production costs as well as 140 jobs should the court force ABC to cancel the program.

D. These Elements, However Similar, are Not Protectable

As Hollywood.com learned when speaking with entertainment lawyer Neil J. Rosini, CBS has to prove that these elements of Big Brother are protectable and as he puts it, “The idea, the concept, of having cameras within a home, watching residents, has been around for a long time.” ABC’s statement agrees: “If inspiring the improvement and development of other television shows with a clever idea is copyright infringement, then reality television itself – indeed, all of television (with its hospital shows, police shows, friends-in-an-apartment shows) would infringe." 

E. Finally, They Are Similar, But They Not Identical

ABC makes a few main points to establish this most important part of the argument:

“No one can own the basic idea for a story.” Citing the Bethea vs. Burnett case in which Mark Bethea claimed Mark Burnett stole his idea for The Apprentice, ABC notes that the very loose premise of 12-14 people living in a house and participating in elimination challenges is not a protectable plot.

The Rules Are Different. Put simply, Big Brother takes place over three nights and the progression of the game is as follows: The first challenge determines the head of household, who then chooses two contestants for elimination. The next challenge determines who has the power to veto and replace one of the endangered contestants. The House then votes on which contestant will go home.

Glass House rules are as follows: Viewers vote and the two with the least votes become team captains and split the house into two teams for a challenge. The captain of the losing team goes to limbo, outside of the house, and the remaining contestants send a member of the losing team to join that person. Viewers then vote to save one of the bottom two contestants.

Viewer Participation Makes All the Difference. Big Brother contestants can act as they choose in order to win the game, because they don’t need to appeal to viewers. “You cannot win The Glass House if you cannot win over the most important player of all: The viewers.”

Similarities in “Characters” and Themes Is Not a Big Brother Thing. CBS purports that ABC’s mission to enlist 12-14 characters of diverse backgrounds and temperaments is a direct copy of Big Brother’s format and that the ensuing themes are also stolen from the CBS series. ABC argues that this style of casting is integral to every reality show on television, adding that the cited themes of “trust, betrayal, ambition, disappointment, bonding, competitiveness, and affection” are the same themes built into “Shakespeare” and “Die Hard movies.” 

The Mood of Tension and Paranoia is a Reality Show Issue. It is “common to any reality show in which players compete in an elimination tournament for an important prize.

The Cloistered House Setting is Not Unique. ABC admits that both houses are built within sound stages, but contests that all other structural and layout elements are either unique to Glass House (pictured above), or found in most American and televised households. As it stands, CBS claims the living room set-up with the television screen and a bar is taken from the Big Brother floor plan.

Now that ABC has responded to CBS' claims, whose side are you on? Should Glass House be allowed to air?

THR has the full legal argument here.

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