Are Formats The Floor Mats Of Copyright?

On Friday afternoon, June 15, 2012, U.S. District Court Judge Gary Allen Feess, Central District of California in Los Angeles, denied CBS Broadcasting's application for a temporary restraining order that would have prevented ABC from airing the premier broadcast of its new reality series "Glass House". CBS complained that "Glass House" infringed the copyright in its long-running "Big Brother" series. Both featured contestants isolated in a confined space competing for prizes, building alliances and fighting with each other while they are systematically voted out of the competition. Judge Feess described these elements as "commonplace". In doing so, Judge Feess dealt another blow to the admittedly fragile protection for one of television's most valued commodities...a popular, highly marketable format capable of being translated and locally re-formatted for domestic consumption in local television markets around the world. The frustration of format owners may have well been summarized by Judge Feess, who observed, "When I first heard of Big Brother, I thought it sounded like Survivor in a house."1

Formats have been around since the earliest days of television game shows like the "Price is Right", "To Tell the Truth" and "Jeopardy". Although the rules are deemed "ideas" and not protected copyright "expression", the creators of these shows have cobbled together a combination of trademarks, trade dress and copyrights to provide at least a veneer of protection. The extent of this protection, often denominated as "thin", has only infrequently been explored by the courts with interested parties apparently relying more on custom and practice in the industry to ward off shows that imitate too closely. Format competition, however, has only been sharpened in recent years by the increasing reliance of broadcasters on relatively cheaply budgeted but highly popular format based reality shows to fill their schedules and provide suitable settings for the commercial advertisements that support them. As the value of formats rises, so does the likelihood of conflict and the resulting law suits that take on the appearance of the shows they are trying to protect.2

So, to repeat the titular question, "Are formats floor mats?" A recent decision involving the venerable Tetris game suggests they are not.

In Tetris Holding, LLC v Xio Interactive, Inc., decided on May 30, 2012 by Judge Wolfson for the U.S. District Court for the District of New Jersey, Civil Action...