Big Brother Sues Israeli Reality Show for Copying
|Written by: Ariel Dubinsky
Founder of Ariel Dubinsky Law Office
Posted: March 14, 2012 @ 7:15 am
Endemol’s claim that the Israeli reality show “24/7: The Next Generation” is a copy will leave the Israeli TV market shaken.
What happens when two television reality show producers – one Dutch, one Israeli – meet in real life? Will they abide by the genre codes of conduct they themselves developed?
This question might be answered by the court in , a precedence-setting law suit in the amount of 3M New Israeli Sheqels (about a meager USD 800,000), which was filed by “Endomel”, a Dutch international television production and distribution company, in Israel, last December against Israel’s Channel 10 and the Israeli production company, “Abbot Reif Hameiri”, which co-produced a reality show titled “24/7: The Next Generation”.
“Endemol” claims that Channel 10 copied elements of the worldwide reality TV program “Big Brother” in the locally broadcast show “24/7″ that aired on Israel’s channel 10 last summer. Endomel petitioned for an order to prevent the production, transmission and distribution of “24/7″ by channel 10, in addition to a monetary compensation of $1 million.
According to the statement of claim, “…watching The Next Generation leaves an obvious impression of conscious and blatant lifting of the Big Brother format – not to mention a deliberate and wrongful attempt on the part of the defendants to unlawfully rip-off Big Brother’s identity.”
In response, channel 10 and “Abbot Reif Hameiri” claimed in their defense that the program “Big Brother” is not original at all, and noted that there were already many earlier similar programs , most of which were broadcast abroad. Furthermore, they argued that “Endemol”’s claims would prevent fair competition in reality-show productions. Accordingly, channel 10 and “Abbot Reif Hameiri” asked the court to dismiss the claim outright.
The Defendants cite the program “Real World” aired on the MTV television network (broadcast worldwide for 26 seasons, as a similar production format where identical ideas have been implemented. “Real World” shows the lives of about 10 people who live in a condo for several months, filmed by multiple cameras 24 hours a day. “Real World” was produced before “Big Brother”, therefore, defendants contend “Endomel” lacks any right in the disputed TV format, and its law suit must be dismissed Channel 10 and “Abbot Reif Hameiri” further contend that “24/7″ is a new creation of their own with strict adherence to all legal directives, including intellectual property laws. Among other things, they contend that, unlike “Big Brother”, the central theme of “24/7″ is love and singles searching for love.
This lawsuit could set a precedent in Israeli copyright laws concerning television formats and could reveal behind-the-scenes industry secrets. The Israeli Copyright Law 2007 does not provide copyright protection for an idea, but only its expression. As for TV formats, Israeli Courts have yet to regulate this issue and have not set a binding precedent in this matter.
The issue was examined by Israeli courts only once, in a lawsuit filed by the Israel Broadcasting Authority (IBA) against Rafi Ginat (the producer, editor and host of the show), after Mr. Ginat moved his show “Kolbotech,”, a highly-rated, long-running consumer awareness program, to Channel 2, an Israeli commercial channel. IBA claimed that the matter involved replication of a television format they own. The court, however, denied their claim, stating that the format actually belongs to a British company and, thus, IBA is not the owner of the rights therein.
Even though the court has yet to decide on the issue, the world of business, which has a distaste for uncertainty, has decided long ago: copyrights to reality show formats like “Big Brother” and “A Star Is Born” (a reality television singing competition, now beginning its 10th season, similar to “American Idol”) are sold to broadcasting companies in dozens of countries for considerable sums of money.
In reality, titleholders of this television format have succeeded in developing a formula that has been effective in convincing potential buyers that the format is protected by copyright, even though this issue is not so cut-and-dried. An article published by Bournemouth University researchers in the UK reveals that the package of a television format for sale consists of a file wrapper that contains the various program components in a “magic formula,” which reads like the “bible” of production and which changes hands under strict confidentiality and licensing agreements.
Among others, the instructions of this format may include how to cast the different contenders and how to encourage audience participation, etc. The whole scene is supervised by “hovering producers”, who ensure that the program licensees in their respective countries do not diverge from format directives.
These titleholders also like to protect their logos by trademark registrations and develop a respectable merchandising industry. Another strategy is to take an aggressive stance by threatening every little production company suspected of copying with legal action. The combination of these successful marketing tools has created a kind of crackling cellophane packaging that has managed to convince television channel managers around the world that what is before them is a product you have to pay for. But now this entire market could be shaken.
In order to prove their claim, the producers of “Big Brother” will have to reveal, for the first time, before the Israeli court the secret scroll of directives that reveals the magic formula by which the show operates around the world. The court will then have to rule whether this formula is, indeed, entitled to copyright protection and whether it was, indeed, infringed by the “24/7″ production team.
Under Israeli law, a plaintiff is not required to prove copying the complete work of art, but rather a fundamental and substantial part thereof. In order to find out what is a fundamental and substantial part of the world’s currently most successful television format, Endemol will have to expose many of their own internal details that are currently maintained in strict secrecy. The reward for winning this lawsuit will likely exceed the traditional fifteen minutes of fame and a million New Israeli Shekels (about USD 250,000).
About the Author
Ariel Dubinsky, is the founder of Ariel Dubinsky Law Office, a boutique law firm based in Tel Aviv, Israel. He has extensive experience in litigating complex trademark infringement cases, including some of Israel's most high profile disputes. Mr. Dubinsky advises and represents multi-national corporations in all aspects of intellectual property. He is a member of the Israel Bar Association and the International Trademark Association (INTA).