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Despite Failures, Copycat Lawsuits Act as Deterrent

Feb 20, 2006  •  Post A Comment

If you can’t beat ’em, irritate ’em.

After years of dragging rival producers to court over copycat reality show formats and losing their costly cases, producers and networks have decided knockoffs of popular shows are legally unstoppable. However, many of those same producers and network executives have continue to file suits.

The reason: Producers find they can still occasionally deter copycats by making competitors fight time-consuming court battles.

“People are increasingly realizing [winning copycat lawsuits is] a losing battle,” said Cecile Frot-Coutaz, CEO of FremantleMedia North America, which owns hundreds of series formats, including “American Idol.” “If you go to court, the chances of winning a format lawsuit are very small, and everybody loses in the end. All it does is reinforce the fact that they’re not protected.”

In recent years, Fox’s “The Next Great Champ” knocked plaintiff “The Contender,” from NBC, out of court. A lawsuit couldn’t stop the concept for ABC’s “Wife Swap” from swinging to Fox as “Trading Spouses.” Even the strict disciplinarians of ABC’s “Nanny 911” and Fox’s “Supernanny,” after some initial lawsuit threats, decided to co-exist rather than fight.

“You can dial the ideas ever so slightly and they basically become [legally] unprotectable,” said Nancy Dubuc, senior VP of programming for A&E, which has endured dueling tattoo parlor reality shows (its own “Inked” versus TLC’s “Miami Ink”) and Texas-based SWAT team series (A&E’s “Dallas SWAT” versus Court TV’s “Texas SWAT”).

To help fight off poachers, producers are moving faster than ever to get their ideas into the marketplace, sources said. But if speed doesn’t stop copycats, a lawsuit is seen as a viable option despite the litany of lost cases.

“Even if you don’t win, you still have to try and protect your franchise; you can’t just roll over,” said a producer currently involved in a reality lawsuit against a copycat. “It may become so cost-prohibitive for them to fight the suit that they drop the show, or they have to alter the show so it doesn’t compete with yours.”

Last year, Fremantle sued a Peruvian television company for ripping off “Idol.”

A&E is taking legal action against the United Kingdom’s Channel 4 for a show similar to “Intervention.”

Last August, the producers of a Minnesota-based show called “Million Dollar Idea” sued ABC and several others, including “American Idol” judge Simon Cowell, for allegedly developing a similar series.

“American Idol” executive producer Nigel Lythgoe, while sitting on a panel about protecting reality formats at the National Association of Television Program Executives convention last month in Las Vegas, described the difficulties of having to defend a series in court.

“I was asked to list thousands of areas [of the production]. I was asked to list who created each shot, who created the fact you used sped-up film to show thousands of kids getting through auditions,” Mr. Lythgoe said. “Was it a format rip-off or an idea rip-off? Since we settled out of court, it doesn’t matter.”

The first highly publicized reality format lawsuit was in 2002, when CBS sued ABC and producer Granada Entertainment USA to try to halt the airing of “I’m a Celebrity, Get Me Out of Here!”-an elimination series that emulated “Survivor” in many respects, even the typeface the shows used. The judge dismissed the case, noting that, unlike “Survivor,” the tone of “Celebrity” was humorous.

The courts don’t recognize formats, only a specific method of expression, said Margaret Caruso, a partner at law firm Quinn Emanuel Urquhart Oliver & Hedges. “You need to have specific characters, mood, themes and rules [to be eligible for protection],” she said.

In other words, for “Survivor,” the concept of a show that votes strangers off an island is not protected. But if another series has 16 “castaways” in a serious competition reality format, facing “reward challenges,” then being eliminated at a “tribal council,” then CBS might have a case.

Because going to court remains costly for both sides of each case, many producers opt to purchase formats to avoid having to take the expensive lawsuit route. In fact, producers are known not only to buy formats from competing companies but also from anybody who might have once pitched a similar idea.

The bonus of buying up formats instead of duking it out legally is that format purchases generally come with a detailed production blueprint on how to make an idea work effectively.

“There’s a lot of merit in having the production bible and having the team that originally produced the format and worked out the kinks at your disposal,” Ms. Dubuc said.

For series owners, the advantage of selling formats is more obvious.

“The best thing about formats is you get money while you sleep,” said Michel Rodrigue, president and CEO of Distraction Formats. “And money doesn’t come any sweeter than that.”

The only way to truly protect a format from poachers is to produce it incredibly well, and be the first out of the gate, Ms. Frot-Coutaz said. “Even then, if you have a hit show, you’re probably going to get sued by somebody.”