In researching my topic, several sources mentioned a court case involving Endemol and its show Big Brother Brazil. Trying to find the actual court case proved impossible, however, so this website was the next best thing. In this article, Jonathan Coad provides a brief on the case of Endemol v TV SBT of Brazil. In this case, Endemol, which owns the format of Big Brother, discusses extensively the format of the show with TV SBT of Brazil. TV SBT failed to acquire a license for this particular format and later created Casa Dos Artistas, which was described as a "rude copy" by not only Endemol but also the Brazilian Court. As a result, Endemol sued TV SBT. As my research has shown, defendants often claim that reality television is a mere idea (since there are no scripts), and as a result, can be imitated. As the article states, the academic opinion countered this stating, "[a] Television programme format, in the sense employed by the television business media, is a much wider concept that does not only include the central idea of the programme but also encompasses an extensive group of technical, artistic, economical, business...information. The format of television programmes is not just the idea of the programme, it is the idea and much more." As a result, this defense (established for so long) has now been deemed as unsuitable to such a format like reality television. This is an unprecedented decision, as the court explains that the Big Brother format has copyright protection in Brazil, and used the Berne Convention as a reason. As the article states, the court explains that the format"contemplates a programme with a beginning, middle and end, with meticulous description, not only of the atmosphere in which the people will live for a certain period of time but also the places where cameras are positioned. The format consists of details such as the use of microphones tied to the participants' bodies, linked 24 hours a day, music styles, the form through which the participants will have contact with the external world, activities, among others. The images and audio situations captured for hundreds of thousands of people through the daily inserts in the programming of the television services and through the Internet with the consequent commercial exploitation is also a unique characteristic of the format."
This case provides an international exception to the wide-held belief that reality television shows are mere ideas that can be taken. In addition, the decision by the Brazilian Court questions the American Court rulings that copyrights for formats are impossible (and charges of copyright infringement are impossible to win for plaintiffs). The ruling of the court, in stating that the format of a show encompasses not simply the idea, but also factors such as technical and artistic information, essentially contradicts some of the statements of American producers. If this decision by the Brazilian Court sets the bar for further international cases, its repercussions may be completely opposite of where reality television is going. For example, if the mark of a copycat is that it has microphones on people's bodies, is videotaping them 24 hours a day, has contestants isolated from the real world, etc.--and this could be regarded as a copyrighted format, then many more lawsuits are possible, and many less knockoffs would be given air time
tagged reality tv by petersse ...on 24-NOV-08
Call#: Van Pelt Library PN1992.8.R43 R45 2004
Susan Murray and Laurie Ouellette, in their book Reality TV: Remaking Television Culture, compile essays on reality television and separate them into three sections: genre, industry, and culture politics. The essay that is most important to my paper is written by Chad Raphael, called "The Political Economic Origins of Reali-TV." In his essay, Raphael traces the history of reality television discussing factors such as the price of production, staff cutbacks, and the ease of distribution. As he explains, prime-time scripted television shows were costing networks an enormous amount of money to produce, and often to hit-or-miss ratings. "For prime-time producers, the average cost of an hour long drama soared to over 1 million per episode by the end of the decade and costs were increasing by roughly 8 to 10 percent a year. Prices were drive up primarily by "above-the-line" costs such as talent, direction, scriptwriting, music composition, computer animation, and location costs." In addition, networks were cutting staff to compensate for the pinch their wallets and ratings were feeling. As a result, reality television was born to provide entertainment with little cost to production companies. By providing a table with costs-per-episode, Raphael demonstrates how a show like "America's Funniest Home Videos" only cost the network 375,000 dollars. In addition, with the increasing trend of cable and VCR's, producers faced license and syndication fees, and were looking for "below-the-line labor and cheaper forms of programming." Reality TV was born.
This chapter provides the history of reality television from an economical point of view. Simply put: reality television shows are cheaper, there are fewer licensing fees, and there are virtually no actors to pay. As a result, producers did not have to invest a large amount of money and time into a prime-time scripted program if another option was available. The reason why this is so important for my paper is that it very clearly lays out the differences between shows like America's Funniest Home Videos and The Real World with shows like Friends and E.R: money, staff, and time. As a result, in cases like the Endemol v. TV SBT (which claims that reality television formats should essentially be treated like scripted ones), the reasoning for the economic appeal of reality television seems to contradict this. Reality television shows are not like scripted dramas in regard to format, and I will use this to argue that reality television shows should not have rights. There is little cost to making it, and a whole lot of reward if you are original. This is a matter of luck and efficiency, not blood, sweat, and money.
tagged reality tv by petersse ...on 24-NOV-08
Substantial similarity in copyright law / Robert C. Osterberg, Eric C. Osterberg Osterberg, Robert C
New York City : Practising Law Institute, c2003-
Robert Osterberg's book is very informative in its thorough analysis of substantial similarity and its relationship to copyright law. Beginning by explaining the meaning and significance of substantial similarity, Osterberg clarifies what constitutes substantial similarity and distinguishes it from probative and strikingly similarity. Venturing next into the principles of substantial similarity, Osterberg discusses what is unprotected: ideas, facts, scenes a faire, cliches, and slogans. Important for the purpose of my paper, Osterberg's chapter 3 provides examples of ways to test substantial similarity: these range from ordinary observer tests to intended audience tests and summary judgment. The latter part of this book, in which he focuses on substantial similarity, copyright law, and fictional works is of most value to my research on scripted-dramas on television. He explains how substantial similarity works in regards to television shows, their characters, the plot, etc. and the copyright law/repercussions for knock-offs and copy cats. Importantly, he discusses trivial similarities (e.g. the location of a show, the general plot, a character etc), and how these are not applicable to substantial similarity regulations. For example, he states that "two characters may, for example, be cantankerous, they may become cantankerous for different reasons and exhibit it in different ways. Similarity cannot be found when the total perception of ideas expressed in each character is fundamentally different." Even more intriguing, however, is his analysis of reality television at the very end of the book in which he provides an analysis unlike any other I have found. Discussing who owns what, Osterberg mentions a case involving baseball: Baltimore Orioles v. MLB Players Association. In this case, the court held that the actions of the MLB players playing baseball was copyrightable, and their performances actually belonged to the teams. The reasoning for this was because they were contractually obligated to perform in televised baseball games. Osterberg then pushes this case to the reality television realm stating that the actions of the performers on reality television actually belong to the producers.
This provocative analogy of baseball players and reality television show contestants dares us to ask the question: who owns reality? If we are to agree with Osterberg in the sense that people on reality television shows (and their performances) are essentially owned by the producers of the program, then it would appear that the producers own reality. In a paper in which I am researching if reality television shows have rights, it is essential to understand that any rights of the individuals are voluntarily given up when that contract is signed. As a result, all rights I am dealing with are that of the producers to the format/characters/etc of the show. Osterberg's section on reality television certainly opens one eyes to the business aspect of reality television, but his analysis of substantial similarity and his thorough explanations of what constitutes it will help in distinguishing what is substantial similarity, what is copyright infringement, as well as providing tests for telling the difference. This will be essential in comparing shows like Survivor and I'm a Celebrity..Get Me Out of Here!
This article, written by James Hibberd, is particularly fascinating as it discusses the legality of knock-offs, and what producers are doing about it. In a time when reality television has exploded onto the airwaves, with shows looking more similar than ever, Hibberd does not discuss the lawsuits--but rather why there are law suits, and why they often are to no avail. As Margaret Caruso explains, "The courts don't recognize formats, only a specific method of expression. You need to have specific characters, mood, themes and rules [to be eligible for protection]." What this means--and what this article explains--is that if Survivor wanted to sue a knock-off, it could not just be because the show votes people off the island; this format is not legally protected. If the knock off had the same specific expressions, ("if another series has 16 "castaways" in a serious competition reality format, facing "reward challenges," then being eliminated at a "tribal council,") then the lawsuit would have a chance at being successful. As a result, many lawsuits challenging knock offs fail, and preventing copycats is legally unstoppable. As a result, all someone has to do is tweak a successful show's format ever-so-slightly in that it can't be said to have copied the specific means of expression. Why do producers and networks file so many of them? As Hibberd explains, they do so because of the slim chance that the producers might prevent copycats. Is this even reasonable? This article is most helpful in that it provides suggestions of what can be done about this: first, networks and producers can be efficient in their ideas for shows; they quickly form the idea, quickly pitch it, and finally get it in the airwaves before anyone can steal their idea. Is this really practical? After all, most copycats stem from shows once they have been successful ON the airwaves. As a result, Hibberd concludes his article by providing suggestions of what can be done to stop all of these copycats in the near future
I find this article extremely useful in how it will tie into my paper. Throughout my research I have been continuously asking how it is that knock-off shows get away with it. As we have learned this semester, it's not just to take the idea, one has to take the expression. This article points out that it's actually not just the idea and expression of a particular reality television, it's a specific expression--and only then do you have a chance. This is essential to the argument of my paper in terms of who owns reality programs, and whether reality television programs have rights. In addition, it takes one into the world of the producers, not just the world of the viewer or the television program itself. In addition, Hibberd's article will help formulate my suggestions as to next steps for the reality televison world. As he explains, programs can decide to join forces and coexist (such as Nanny 911 and Super Nanny), or producers can opt to purchase formats to forgo the expensive law suit route.
This website, provided by Court TV, complies all of the lawsuits filed against reality television shows over the past few years. These 24 cases range from unwilling contestants getting hurt during a show to producers calling foul on copy cat programs. For a few of the cases, the actual complaint filed is available in addition to the court decision. For each case, there is a brief summary of the charges as well as the decision made in (or out of) court. There are a wide variety of cases here, and I find two or three of them particularly relevant for my paper. One of such cases involves Howard Stern, a radio talk show host. In this complaint, he claims that "Are You Hot?" is "a blatant rip-off of a segment from his radio show, which he was planning to reinvent for a pay-per-view broadcast until ABC picked up the idea and ran with it, preventing him from pursuing his idea." Clearly, this provides a twist on what I have been focusing on, as the material used for a reality television show comes from a different venue: the radio. Luckily, the complaint is available for this case, and we learn that Stern wanted 100 million dollars, and it was settled--although the amount is undisclosed. Another interesting case is the one regarding Big Brother and the novel "1984." As the case summary explains, Marvin Rosenblum, owner of the movie and television copyrights to George Orwell's novel "1984, claims that no one from the company responsible for "Big Brother" asked his permission for references to the novel in the show or "in the production company's name." Unfortunately, the amount is undisclosed, but the case itself provides very interesting implications. Reality television shows are unscripted, therefore should the people on them have to censor what they say because of copyright infringement? This opens a new can of worms for reality television copyright in that what people may reference, talk about, or wear on the show may have to be censored out by editing. If this happens, what will happen to reality tv?
While this website might be considered a blog, I believe it is the stepping stone for a multitude of information. Neatly compiling all the cases and providing links to the complaints and court decisions, this will be extremely helpful in demonstrating the wide variety of complaints against reality television. In addition, it will open the spectrum for my paper in regards to what legal matters reality television shows face in terms of who owns reality and copyrighted material. For example, several of these cases deal with contestants who were unwilling to be part of a reality television show and sued for distress and injury. Other cases involve knockoff reality television programs and the substantial similarities that demonstrate another show has been copied. A majority of the cases are regarding contestants complaining about the producers editing/manipulation of the show. Taken together all of these cases combine to provide us with the sticky situation reality television producers are in, and how it may be impossible for them to ever gain any substantial rights.
"Nothing breeds lawsuits like success." This is one of the lines in this article, found in the Broadcasting & Cable Journal, in 2001 discussing the lawsuits of reality television. What is different about this particular article, however, is that courts are not hearing cases from networks suing other networks. Instead, it is the contestants who are suing. Focusing on three particular people--Diana Daly, Marietta Marich, and John Keating--this article explores the world of reality television from people who were unwilling to be the focus of reality television programs. Daly signed a release that allowed VH1 to take her for one of their shows, only the camera crew followed her into the bathroom stall, and the show used her image for billboards throughout the US. Marich was watching tv one evening to find her son's corpse on the screen for a reality show called LAPD: Life on the Beat. Keating was the victim of a prank show, in which resulted in his safety being put into jeopardy for an X-Rated Candid Camera- type show. All three of these civilians cases were either lost or thrown out, and so this article is primarily about the rights of the unwilling (or willing) people on reality television programs. In the past few years there have been a number of lawsuits from individuals towards networks and producers with complaints including such issues as privacy, the legality of waivers signed by show participants, liability, the use of hidden cameras, and alleged rigging of shows. This journal article also explores reality television shows that are more risky as others, including well-known Fear Factor. Steve Beverly, a professor at journalism at Union University is getting Washington involved, asking them to investigate issues such as "who is ultimately liable if a show contestant is injured or killed: the network, production company or individuals."
Since the issues brought up are so unclear, this article is extremely provocative as it makes us wonder why in reality television the individuals on who these shows depend on--essentially own nothing of what they say and do, and are responsible for everything if things go wrong. In my paper, in which I question whether reality shows have any rights and who owns them, it is very interesting to learn that its contestants have none. If the main argument of reality show producers is that their shows are unscripted and based on what people say--why are these people given no rights? If reality is truly capturing the real lives of people, then shouldn't these people be able to own their own actions? This is further proof of the exception of reality television to any sort of script or documentary. I'm not sure how this will work into my paper, but I find it essential to research all rights (or lack thereof) involved with the reality television genre.
This LA law review on the court decision of CBS v. ABC (Survivor v. I'm a Celebrity--Get me Out of Here!), discusses in depth the legal proceedings that revolve around reality television court cases. It establishes what the plaintiff must prove in suing another producer/network, by stating that he/she must prove ownership "of a copyrightable work and copying of the work's protected elements amounting to improper appropriation." In addition, it explains how copyright infringement is only possible when the original work is, in fact, established to be "original." Perhaps what is most helpful about this law review is its in depth analysis of substantial similarity and how it works in regards to scripted television programs. It explores how courts have used this medium to determine the outcome of several reality television cases regarding copyright infringement. More importantly, however, we learn how existing case law applying copyright principles to television programming is crafted in the context of scripted dramas, or game shows. As a result, this article points out the inefficiency of such standards to cases like CBS v. ABC. As the review states, "the court extracted a list of show elements to be compared, some of which at first blush, must seem inapplicable to an unscripted reality program. Specifically, the court identified the 'total concept and feel, theme, characters, plot, sequence, pace and setting' of each program without discussing possible differences between scripted and unscripted television. As it lays out the differences between scripted programs and reality television, it discusses how the latter has lower production costs and its unscripted formats encourage the quick and inexpensive development of knock off shows. Finally, it discusses the ideas courts use such as substantial similarity, filtration, as well as the copyright act.
This law review is unmatched as a legal resource for copyright and reality television cases. Since it is so thorough in describing legal terms, court proceedings, and decisions made my courts in regards to reality television shows, it exposes the convoluted decisions and demonstrates their inability to be applicable to reality television shows in this current decade. As a result, I will first refer to this source as a means to discuss what the legal terms used in cases like CBS v. ABC mean and how they apply; I will be using this particular case frequently as it is the one that is most related and recent to copyright infringement and reality television. Since no other source I have found ties in substantial similarity to television, this one will be invaluable to explaining on what basis all of these shows are legal knock-offs. Since this review focuses a large portion on the ignorance of the Court to fail to acknowledge the novelty of the reality television phenomenon, I will refer to it in my paper to discuss the future of reality television and how the established application of traditional copyright principles might be irrelevant as more law suits are born.
This article is different from others I have researched in that it discusses the right to privacy of people on reality television shows. Trigoboff discusses the case of Ruth Shulman, an accident victim, whose post-accident conversations with emergency workers at the scene and in a rescue helicopter was secretly recorded by a reality television programs called "On Scene: Emergency Response." Apparently, the paramedics involved in this particular case had hidden microphones as a way to get information/a news story from the victim. Taking this show to court, Ruth Shulman presented her case to California's Highest Supreme Court. In their ruling, the court determined that TV news/reality programs can be liable for invading the privacy of those involved, even if their medium is a news story. As Justice Kathryn Mickle Werdegar states, "In contrast to the broad privilege the press enjoys for publishing truthful, newsworthy information in its possession, the press has no recognized constitutional privilege to violate generally applicable laws in pursuit of material." In a blistering statement she also says, "The public has no legitimate interest in witnessing [accident victim Ruth Shulman's] disorientation and despair. Nor does it have any legitimate interest in knowing her personal and innermost thoughts immediately after sustaining injuries that rendered her a paraplegic." This presents an interesting new obstacle for tv news programs that are through the medium of reality television: the rights of the individual precede the entertainment aspect of a program. In addition, if the public has "no legitimate interest" in something, does that mean that any reality television show can be liable for lawsuits? This ruling is highly controversial as this article explains. Citing John Langley, the creator and executive producer of Cops, the article describes how producers are wondering about the impact of this ruling on the relationship between reality television and the First Amendment will have on reality television itself.
Since this article provides examples by a ruling of the California Supreme Court regarding reality television and the First Amendment in 1990, it will serve as an example of what changes reality television has had to undergo to be where it is today. Since the Court ruled that such programs could be liable for invading the privacy of those involved (like Ruth Shulman), shows have had to adapt over the past 15 years. Instead of shows like "On Scene: Emergency Response" or "Rescue 911," the reality television shows today are ones in which contestants voluntarily sign up to be on camera. As a result, while this source may seem to have no relevance because it is outdated and more about journalistic/news programs, it is actually imperative to understanding why reality television has taken the shape it has today. I will use this at the beginning of my paper to describe how far this phenomenon has come and what changes it has had to make to protect the First Ammendment Rights of its contestants.
Call#: Van Pelt Library PN1992.8.R43 H84 2006
Richard Huff's book, Reality Television, examines the components of reality television as well as the benefits/consequences that come along with it. Whether he is asking where reality programs come from or whether there is life after reality, Huff dissects this phenomenon of reality television that has especially dominated the airwaves over the past five or so years. In addition, in his chapter titled "This Show Seems Awfully Familiar," he discusses the process involved in copying another program, whether it is a scripted drama or a reality program like "Survivor." Dissecting the time-consuming (and often not as successful) process of copy-cats of scripted shows such as Friends, this chapter does a thorough job of comparing why there are so many copycat reality programs as compared to prime time dramas. In addition, he provides many examples of such reality programs that seem to be directly taken from another show. Most importantly, perhaps, Huff describes why reality television has been such a product of stealing and why people get away with it by describing the difficulties of winning lawsuits, the production process, as well as the rights of broadcasting companies.
This book, and particularly the chapter described above, will be the main focus of my paper. I will be able to question why it is that reality television shows are so common (and so similiar) by looking into each program he lists in this chapter. In addition, Huff provides a table of law suits that have stemmed from reality television copycats; I can take these examples and research them more thoroughly: What was the issue? How similiar were the programs? Was it a matter of stealing the idea, or was it stealing the format as well? The most crucial part about this source is that it questions the format versus the content of telvision programs. Is it enough for someone to just steal your idea to call foul? Or is this perfectly acceptable in the reality telvision world? By examining his justification for why stealing a producer's or networks idea is allowed (and not legally stopped) in this particular format, I will be able to come to an answer of who owns reality television, whether it has any rights, and perhaps even more importantly..whether it should.
tagged reality tv by petersse ...and 2 other people ...on 21-NOV-08
Call#: Van Pelt Library PN1992.8.R43 U53 2004
tagged reality tv by petersse ...on 17-NOV-08