ABC scored a major victory — at least for now — in the lawsuit over its upcoming reality series "The Glass House" on Friday, after U.S. District Judge Gary Feess denied CBS' request for a temporary restraining order against the series, which is scheduled to premiere June 18.
However, Feess' decision is tentative; the judge said that he will issue a written ruling shortly, after considering arguments from both sides that were made this morning.
Despite the seeming legal blow, CBS' lawyer, Scott Edelman, told TheWrap, "We're grateful that the court is considering the issue as carefully as it is, and we appreciate that."
No matter what the judge's final ruling is, CBS is vowing to continue the legal battle.
"Win, lose or draw on the TRO, we fully intend to proceed with our claims against Disney/ABC for copyright infringement and misappropriation of trade secrets over 'The Glass House,' which may still warrant more injunction proceedings depending on the content of each episode," the network said in a statement provided to TheWrap. "At the same time, we will move forward with our individual claims for liability and liquidated damages against any current 'The Glass House' producer who violated their 'Big Brother' confidentiality agreement."
Glen Pomerantz, attorney for ABC, declined TheWrap's request for comment.
CBS claims that ABC's "Glass House" employs proprietary information from its own "Big Brother," obtained from numerous employees that formerly worked on the CBS reality competition.
At the opening of Friday morning's hearing, which began at 9:30 in U.S. District Court, Feess indicated that he was disinclined to rule in favor of CBS's request for a temporary restraining order, noting that CBS's trade-secret claims are conflated, and that the network's arguments are not strong.
Feess added that California public policy favors employment and competition, and described "Glass House" and "Big Brother" as "quite different television programs." Specifically, Feess suggested that the heightened audience-participation element of "Glass House" will induce significantly different behavior in the show's contestants than on "Big Brother."
In a further blow to CBS's argument, Feess opined that the workings of "Big Brother" are generally known in the industry, and could be "reverse-engineered from watching the show."
Feess added that reality shows are so popular that the airing of "Glass House" isn't likely to infringe on "Big Brother," but if it ends up doing so, it's possible that money damages could be awarded. Overall, however, Feess said that stopping "Glass House" at this point would create job losses for crew and contestants alike, who forfeited other jobs and job opportunities in order to participate on the show.
Feess told CBS lawyer Scott Edelman that it's not uncommon for reality shows to share similarities with other reality shows — including "Big Brother."
When he first heard of "Big Brother," Feess told Edelman, he thought, "This sounds like 'Survivor' in a house … A lot of things affect expression but are not expression, so they can't be copyright protected."
Attempting to persuade Feess otherwise, Edelman told the court, "Defense virtually concedes they copied the show," adding that "Glass House" copied "Big Brother" "lock, stock and barrel with minor changes around the fringes to make it look different."
Edelman then showed images and clips from both shows in an effort to demonstrate the "enormous similarity" between the shows.
The attorney argued that both series have the "same fly on the wall voyeuristic feel," adding, "[t]he voyeuristic feel is the embodiment of 'Big Brother.'"
After that, Edelman turned the argument toward "Glass House" executive producer Kenny Rosen, who formerly served as a producer on "Big Brother" and is among many former "Big Brother" employees to find work on "Glass House."
"Why is this highly experienced person, five years later, still in possession of these manuals?" Edelman asked, referring to manuals from "Big Brother." "We clearly have violations of [a non-disclosure agreement]."
Edelman added, "I would suggest what would be appropriate would be to allow for expedited discovery and to issue a [temporary restraining order]."
Edelman told Feess that, if "Glass House" is allowed to air, "There would be a highly detrimental effect to CBS … That harm is difficult to quantify, but as difficult as it is, the harm is irreparable."
Glenn Pomerantz, ABC's lawyer, countered Edelman's argument. "When you look at the audience involvement [on 'Glass House], it is fundamentally different," Pomerantz said. The attorney argued that "Big Brother" contestants are motivated to form alliances to stay on the show, whereas "Glass House" contestants will be more motivated to impress viewers. ABC's lawyer also pointed out that the "Glass House" contestants are divided into two teams of six, a different configuration than on "Big Brother."
Arguing that CBS has failed to define any trade secrets that ABC has allegedly violated, Pomerantz added that CBS has " yet to identify what we're really doing wrong." Pomerantz told Feess, ""ABC doesn't want to use any of CBS' trade secrets. It doesn't need them."
CBS filed its suit in May, claiming that the similarities between the two series — which both feature a group of strangers being filmed cohabiting in a house while competing against each other — are too many to be coincidental.
In its complaint, CBS pointed out that numerous former "Big Brother" employees are working on "Glass House," and suggested that they were exploiting trade secrets learned while working on "Big Brother."
ABC has countered that the similarities brought up by CBS so far are merely staples shared by numerous reality series. The network also denies that it has poached former "Big Brother" staffers to create a copycat series with "Glass House," countering that the group has worked together on a series since "Big Brother," and they were brought together once again because they have developed a good working relationship.