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How’s this for a new TV reality show: Contestants appear buck naked and are judged on whether they have that certain je ne sais quoi necessary to be a centerfold. Tragically, we may never know what might have been. Shock jock Howard Stern and Showtime Networks Inc. were said to be in talks last year about creating just such a show based on Stern’s racy radio/TV program, The Evaluators. But ABC beat them to the punch with Are You Hot? The Search for America’s Sexiest People, which premiered in February. Showtime then backed off, reportedly telling Stern, “We don’t want to look like we’re stealing.” So Stern did what any red-blooded American would do: He sued, in Los Angeles state superior court. Litigation and reality shows go hand in hand. Networks regularly face suits like Stern’s, where people claim that the original idea for a show was theirs. Contestants also sue, but network legal departments � clearly more sophisticated than the shows they air � make sure contestants sign an ironclad release form. These documents make such suits all but certain to fail at anything but garnering a few more moments in the media spotlight. So-called theft-of-idea suits brought by writers and producers are equally tough to win, but that doesn’t stop people from bringing them. Why are these suits so difficult to win? Because reality shows (or unscripted drama, as they’re also called, in a small concession to the likelihood that anyone really does these things off-camera) are essentially updates on the classic game show format. Many elements � judges, contestant interviews, hosts, and prizes � are fair game for networks and production companies, because they’re in the public domain. As a result, it’s pretty easy for a show to meet the minimum standard for originality necessary to dodge a suit. In addition, network lawyers try to minimize possible suits by accepting ideas only from agents or lawyers, says Henry Hoberman, head of litigation at ABC, Inc. He adds that he doesn’t know of any successful format-related suits. But some potential plaintiffs bypass the courthouse and head straight to the negotiating table. That’s just what James Hong and Jim Young, the brains behind the three-year-old hotornot.com, are doing. They’ve been talking to ABC through their attorney, Susan Hollander of the Palo Alto office of Manatt, Phelps & Phillips. The two claim that Are You Hot? violates their site’s trademark because contestants are judged on whether they’re “hot or not.” Ironically, Are You Hot?‘s best defense may be its plunging ratings � from 10.1 million viewers to fewer than 6.9 million this spring. Lawsuits involving shows with lousy ratings usually fizzle out, says Steven Marenberg, a litigation partner with Irell & Manella in Los Angeles. Marenberg points to a suit he was involved in between the producers of two short-lived shows, ABC’s The Chair (duration: two weeks) and Fox’s The Chamber (only three weeks). “There wasn’t anything worth fighting about,” he says. Maybe the best solution for Stern and ABC would be a Hot-lympics, in which Stern, Are You Hot? judges Lorenzo Lamas and Rachel Hunter, and Hong and Young all work together, harnessing the powers of the Internet and the show’s “laser pointers” signature for, say, world hunger, instead of wearisome litigation. Just remember: We thought of it first.

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