Dutch courts rule that 'Big Brother' does not steal from 'Survivor'
By Wade Paulsen, 05/04/2004
No wonder television schedules are full of copycat shows.
Variety reports that the Dutch Supreme Court has upheld rulings by a a lower court in 2000 and the Dutch Court of Appeals in 2002 that the Big Brother format, owned by the Dutch company Endemol, does not infringe on the intellectual property of Survivor, owned by the British firm Castaway Productions, despite the similarities between the shows. This ruling effectively ends the litigation between the two best-known "formats" in reality TV.
While the ruling comes as little surprise -- after all, in addition to the lower court rulings, Castaway lost a similar lawsuit in the U.S. against the producers of the even-more-similar I'm A Celebrity ... Get Me Out of Here! in January 2003 -- the question as to the extent of copyright protection over reality TV formats lingers.
In 2000, the Format Recognition and Protection Association ("FRAPA") was formed as part of an initiative for TV producers to mediate disputes among themselves. FRAPA head Christoph Fey claimed that, despite the final holding in the Castaway-Endemol case in favor of the format copier, the case set precedent favorable to format owners by holding that TV formats were protectable. The Dutch courts ruled that there was no substantial similarity between the formats of Big Brother and Survive! (the name that Survivor was marketed under in early 2000), not that Survive! wasn't covered by copyright.
"No substantial similarity" between the two formats? When Big Brother is so obviously related to Survivor, and the two shows are so different from everything that came before them? Pardon us for concluding that, if these two shows aren't "substantially similar," then the only reason ANYONE in television would ever license a format instead of imitating it is because it wanted the assistance of the producer (Endemol, Mark Burnett, Mike Fleiss, Bruce Nash, Stone Stanley, etc.) who created the format.
John de Mol, the "creator" of the Big Brother format who lost a power struggle within Telefonica (the owners of Endemol) and left the company at the end of May, stated that the Dutch court decision was a "no-brainer since I can easily explain that there's more resemblance between Big Brother and Wheel of Fortune." Now that Mr. de Mol is not employed, we invite him to submit such a comparison, since we seem to be suffering from a shortage of humor, and we can't think of anything much sillier that trying to argue that Big Brother is not Survivor with only a few elements changed ... or that either show has much in common with the traditional game show genre.
While those elements may be enough to convince courts that Big Brother does not infringe upon Survivor's intellectual property, we cannot help but think that the judges were more motivated by the old intellectual property maxim that you can't copyright an idea, only the expression of the idea.
As the U.S. judge wrote in the I'm A Celebrity ... case, to rule in favor of Castaway Productions -- made up of the trio of former Boomtown Rats head Bob Geldof, Lord Alli and Survivor creator Charlie Parsons -- would "stifle innovation and stifle the creative process." We agree. After all, look at the number of reality-competition shows that can logically be argued to be "descendents" of Survivor, starting with The Apprentice ... and then imagine what TV schedules would look like minus all of those shows. Welcome back, Coupling and Skin!