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The legal battle between reality television boxing shows “The Contender” and “The Next Great Champ” has proved to be more of a slugfest than anything going on in the ring. Colorful headlines this summer blared from the pages of industry trade newspapers, like Variety‘s “Contender Could Knock Out Champ.” Household names from sports and entertainment — Sylvester Stallone, Oscar De La Hoya — lined up on each side. The largest companies in entertainment — Fox Broadcasting Co., which produced “The Next Great Champ,” and its opponent, DreamWorks, which produced “The Contender” for NBC, along with all of their competitors — were intensely focused on the outcome of a few days in a Los Angeles courtroom. Contender Partners LLC v. Fox Broadcasting Co., No. SC 082599 (Los Angeles Co., Calif., Super. Ct.). And the winner? Stay tuned. These two reality television shows may at first seem an unlikely source for such contentious litigation. At the heart of the dispute between DreamWorks Television and Fox Broadcasting is the simple idea for a television show about boxers who would compete in some fashion, with one man left standing at the season finale. But in the superheated competition of reality television programming, ownership of ideas such as “The Next Great Champ” and “The Contender” are increasingly being disputed. Allegations of idea theft will likely increase as the number of reality television shows expands and the realm of truly novel ideas shrinks. Resolution of these cases could have an impact on the existing intellectual property law and set new standards for ownership of ideas and the best ways of protecting those rights. Since the new wave of reality television exploded on to the airwaves with “Survivor” in the summer of 2000, there has been a rash of lawsuits. They come in varying and sometimes unusual forms — everything from injuries during filming, to people who are dragged unwillingly into hidden-camera shows and lawsuits alleging that programs were rigged and people were cheated out of the prizes. The most significant claims have been over intellectual property rights, primarily idea and format theft. Just about all of these lawsuits involve the big television networks on one side or another, or both. CBS sued ABC alleging “I’m a Celebrity, Get Me Out of Here!” was too much of a rip-off of “Survivor.” CBS Broadcasting Inc. v. ABC Inc., No. 02 CV 8813, 2003 U.S. Dist. Lexis 20258 (S.D.N.Y. Jan. 13, 2003). Radio shock-jock Howard Stern sued ABC and Telepictures arguing that the reality television show “Are You Hot” was a rip-off of his “The Evaluators” radio segments. Stern v. Telepictures Productions Inc., No. BC 292018 (Los Angeles Co., Calif., Super. Ct.). In addition, ABC claimed that Fox’s “Trading Spouses” stole the concept for its show “Wife Swap,” in which mothers from two families switch places, but it took no formal legal action against Fox. See, e.g., Bill Carter, “In Reality TV, Is It Thievery Or Flattery?,” N.Y. Times, Aug. 2, 2004, at C1. Both programs are currently airing. FORMAT IS THE CREATIVE ELEMENT Because reality programs are generally “scriptless,” the format of the show itself is the creative element that is frequently open to complaints of theft, rather than actual scripts or the traditional printed word. As all of the networks compete for the next great idea, the fine lines of distinction between a novel idea and a copycat by another name are blurring. No bright-line tests have emerged to clarify the ground rules for networks, studios or would-be writers and producers. Still, an examination of recent cases points to distinct trends. The lawsuit between “The Contender” and “The Next Great Champ” treads a beaten path of allegations that a television network copied an unscripted program — and along the way, tactics and law have changed. Years before the reality television craze, a lawsuit against trend-setting MTV Networks showed the danger that courts, when they cannot look to scripts or written dialogue, may look to the format of the show when undertaking a copyright analysis. In turn, the court may determine that such formats contain primarily generic, stock elements, which are not entitled to copyright protection. In that case, Sheehan v. MTV Networks, 22 U.S.P.Q.2d (BNA) 1394 (S.D.N.Y. 1992), plaintiffs Monica Sheehan and Luis Rojas developed an idea for a game show involving music video trivia before MTV launched its game show, “Remote Control.” Both game show ideas included three players, multiple rounds of play in order to eliminate contestants, a host who poses questions and some kind of handheld device. Judge Louis J. Freeh of the U.S. District Court for the Southern District of New York granted summary judgment in favor of MTV and dismissed the plaintiffs’ complaint. In his ruling, Freeh explained that MTV’s show was similar to the plaintiffs’ idea only in “‘stock devices’ common to game shows generally.” ‘SURVIVOR’ v. ‘BOOT CAMP’ Idea-theft claims took on added significance in 2001 when the reality craze heated up. A fight between CBS’ Survivor and Fox’s reality show “Boot Camp” showed that networks were willing to sue each other to protect their reality television programs. CBS sued Fox for copyright infringement, common law unfair competition, California statutory unfair business practices and civil conspiracy in the U.S. District Court for the Central District of California. Survivor Productions LLC v. Fox Broadcasting Co., No. CV 01-3234 (C.D. Calif.). CBS and Mark Burnett alleged that Boot Camp unlawfully copied their “Survivor” reality program series. For example, CBS claimed that “Boot Camp” copied “Survivor’s” significant elements, including the placing of contestants in harsh and unfamiliar conditions, requiring them to work together in teams and then forcing them to vote off one contestant at the end of each episode in a ritualized ceremony. By Sept. 5, 2001, CBS and Fox stipulated to the dismissal of the complaint, pursuant to a confidential settlement agreement. It remains unclear just who — if anyone — won, but the lack of a clear ruling sent a message about just how difficult these claims are to make and defend. In the next internetwork case involving a fight over the alleged copying of a reality program and a claim of copyright infringement, the court was troubled with the notion of protecting an unscripted show that combined frequently used generic elements — just as in the MTV case. CBS and Mark Burnett’s “Survivor” were again at the center of the dispute, when CBS sued ABC for copyright infringement, alleging that ABC’s television reality program “I’m a Celebrity, Get Me Out of Here!” infringed the copyright for CBS’ “Survivor” series. CBS Broadcasting Inc. v. ABC Inc., No. 02 Civ. 8813, 2003 U.S. Dist. Lexis 20258 (S.D.N.Y. Jan. 13, 2003). Judge Loretta A. Preska of the U.S. District Court for the Southern District of New York denied CBS’ motion for a preliminary injunction. Preska explained that the two television reality shows were “literary works,” and that when evaluating claims of infringement involving such literary works, liability for copyright infringement results only if the protectable elements were substantially similar. The court found that both shows combined well-known and frequently used generic elements of earlier works. Accordingly, she refused to provide copyright protection for those elements, explaining that, “providing protection to a combination of generic elements … would stifle innovation and would stifle the creative process that spawned the two shows at issue here.” Id. at *24-25. It was becoming increasingly clear that a fight over the copying of formats presents a hard road for a plaintiff. As reflected by the MTV and CBS cases, a court could find that significant elements of an unscripted show are nothing more than a selection and sequencing of unprotectable, frequently used generic elements. Recent case law shows that plaintiffs must meet a higher standard in order to establish copyright infringement under circumstances in which the selection and sequencing of unprotectable elements of a program is at issue. For example, in Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003), a case concerning jellyfish sculptures, the 9th U.S. Circuit Court of Appeals expressly held that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Similarly, when a plaintiff’s work is composed of the selection and sequencing of unprotectable elements, it takes virtually extensive verbatim copying to constitute copyright infringement. Accordingly, in Schoolhouse Inc. v. Anderson, 275 F.3d 726, 728-29 (8th Cir. 2002), a publisher of a magazine containing information about public schools lost its claim against an individual who put similar information on a Web site. Attorneys for plaintiffs often cite to the 9th Circuit decision of Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002), concerning the television drama “City of Angels,” for the proposition that the selection and sequencing of unprotectable elements itself may qualify for copyright protection. The plaintiffs in that case claimed that the TV show infringed their treatment and screenplays. The court first identified the unprotectable elements as follows: “One cannot copyright the idea of an idealist young professional choosing between financial and emotional reward, or of love triangles among young professionals that eventually become strained, or of political forces interfering with private action.” Id. at 1074. But then, in permitting the Metcalf case to survive summary judgment and go to trial, the 9th Circuit explained that “[t]he particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element. Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection.” Id. Notwithstanding this seemingly broad language, the Metcalf decision does not carry the day. First, in the Satava case, the 9th Circuit expressly limited the Metcalf holding to situations in which the unprotectable elements were “numerous” and sufficiently originally arranged. Satava, 323 F.3d at 811. Most important, although the Metcalf case was permitted to go to trial, the jury returned a verdict for all defendants on June 23, 2004, finding no copyright infringement. The defense verdict in the Metcalf case is currently on appeal. READY TO RUMBLE With these preliminaries over, the main event in which “The Contender” and “The Next Great Champ” would face off was about to begin. In one corner was plaintiff Contender Partners LLC, a venture which includes Mark Burnett and DreamWorks, working for NBC. As alleged in the lawsuit, “The Contender” is an unscripted drama focusing on the dreams, desires, struggles and sacrifices of talented young boxers who prepare for and compete in boxing matches for the chance to win $1 million and the title of “The Contender.” In the other corner was Fox and reality producer Endemol and their show “The Next Great Champ.” As Fox stated in the lawsuit, “The Next Great Champ” is an unscripted reality television show involving boxers; the contestants are 12 aspiring boxers who compete in boxing-related challenges and boxing matches to win, among other things, a professional boxing contract with Oscar De La Hoya’s boxing promotion company. The opening bell sounded on Aug. 17, when Contender Partners filed its lawsuit against Fox alleging that “The Next Great Champ” is a copycat of its show “The Contender” and that Contender Partners, not the defendants, was the originator of the concept. Notwithstanding its claims of copying, the plaintiff threw both copyright and implied contract legal theories out of the window. Perhaps seeing that copyright infringement claims were not clear winners in many earlier cases, Contender Partners apparently concluded that a copyright infringement claim was not the best fight plan — even though allegations of copying were at the heart of the dispute throughout the litigation. Instead, the plaintiff brought only one cause of action for unlawful, fraudulent and unfair business practices under �17200 et seq. of the California Business and Professions Code. The plaintiff contended that it brought the action as a representative of the general public of the state of California, and sought to remedy what it claimed were the unlawful business practices that permeated the making of “The Next Great Champ.” In particular, the plaintiff alleged that the boxing matches in “The Next Great Champ” were arranged in violation of California law and boxing statutes. Despite taking this tack, the plaintiff reiterated that “The Next Great Champ” “is a blatant rip-off” of “The Contender” series. The defendants responded that the lawsuit was not about remedying alleged violations of boxing law, but was rather an effort to eliminate a competing reality television show about boxing — or at least stall it. The defendants argued that �17200 of the Business and Professions Code, which was enacted to prevent unfair competition, cannot be manipulated as a means to gain an unfair advantage over a legitimate competitor. THE ULTIMATE RULING On Aug. 27, Lisa Hart Cole, California state court judge in Los Angeles, ultimately rejected the plaintiff’s motion for a preliminary injunction and stated that “this is a case about money.” Cole explained her belief that the plaintiff is more concerned about “being aced out of a concept being broadcasted” and ultimately denied the request for a preliminary injunction on the ground that the proposed injunction would be unconstitutional. And so “The Next Great Champ” began airing on Sept. 7 — and then on Oct. 4 was dropped and moved to cable on Fox Sports Net because of weak ratings. “The Contender” was set to debut in November but will be pushed back to January. But the fight over reality programming between networks is far from over. In the disputes between them thus far, no one network clearly has been able to use a lawsuit to protect its own reality program from alleged cherry picking by the other network — no matter what legal theory is advanced. As it stands, the current trend suggests that it may require a clear-cut case of copyright infringement — based on extensive, verbatim copying — in order to enable one network to prevent another from borrowing elements from one reality show in order to put a “new,” competing reality show on the air. For now, the fight to protect reality TV formats has a few more rounds to go. Andrew M. White is a partner at Los Angeles’ White O’Connor Curry & Avanzado. He has an extensive background in all forms of entertainment law. Lee S. Brenner, also a partner at the firm, has extensive experience in litigating copyright and idea-submission claims, as well as complex entertainment matters in general. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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