The "Great Reality TV Show Controversy of 2004" masterminded by Fox is finally headed to court ... despite a late date change by Fox that looked like an effort to circumvent the court fight (although Fox denies any intent to do so).
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Although Contender Partners lost its bid on August 18 for a temporary restraining order preventing Champ from going forward, it was granted both the right to demand documents from the Champ defendants that were relevant to the case (referred to as "discovery" in legal parlance) and an expeditied hearing on its request for a preliminary injuction against Champ due to unfair business practices.
The hearing for the injunction was set by Judge Linda Lefkowitz (at the Santa Monica Court) for Wednesday, Sept. 8, 48 hours before the show was scheduled to air. Judge Lefkowitz instructed Fox to notify the court if it changed the premiere date -- which is exactly what Fox did... the very next day.
Late in the night of Thursday, August 19, Fox changed the premiere date for Champ to Tuesday, Sept. 7 -- a day before the hearing for the preliminary injuction. According to Daily Variety, Fox claimed to have made the switch for "competitive reasons" -- in particular, because it believed that The Contender could debut on NBC far earlier than its announced November schedule ... consistent with the rumored preview special of The Contender in early September.
Fox's quick switch led the plaintiffs back to Los Angeles Superior Court on Friday, Aug. 20. At that time, Fox's lawyers claimed to a different judge (Judge Lisa Hart Cole at the Beverly Hills Court) that the switch in dates was completely unrelated to the court schedule. The court records are unclear, but it's believed that they even managed to keep a straight face while doing so. Fox also introduced a new argument, claiming that an injunction blocking The Next Great Champ from airing would be an unconstitutional restraint of free speech and that Contender Partners should be limited to money damages.
Judge Hart Cole quickly dealt with both issues, scheduling a separate hearing on the constitutional claims for Friday, Aug. 27 and rescheduling the hearing on the preliminary injuction to the morning of Sept. 7 -- only eight hours before Champ is scheduled to make its East Coast debut.
The core issue in the lawsuit is not, at this time, an "infringement of copyright" claim. Oscar de la Hoya, the Olympic gold-medalist boxer who hosts The Next Great Champ, has previously claimed that Champ was an independent idea of his ... although, as Reality TV World reported back in July, his claim appears to be refuted by his previous statements. However, even if the idea of The Contender was stolen by Fox and Endemol for The Next Great Champ, that would not be sufficient to win a copyright case (as demonstrated in previous lawsuits by Burnett's Survivor against Big Brother and I'm A Celebrity ... Get Me Out of Here!).
The idea that only, at most, the idea of The Contender was stolen by The Next Great Champ was given prominent play by Fox President Gail Berman during the Television Critics Association press tour in July. However, the similarities between The Contender and The Next Great Champ may indicate that the Fox copycat show also steals the execution of the idea -- which would constitute copyright infringement.
Unfortunately for The Contender, judges tend to view such claims skeptically, due to their fear of "stifling the creative process," as the judge in the Celebrity case opined. In addition, preliminary injunctions are difficult to win in copyright infringement cases (although, after an infringement has been proven, the infringing party will often be forced both to disgorge all profits and to destroy the infringing work).
Instead, the "unfair business competition" claim raised by the plaintiffs centers upon Champ's problems with the California Athletic Commission. The producers of The Contender allege that the producers of The Next Great Champ repeatedly violated California regulations regarding boxing matches in their haste to get their show on the air first -- and well-established law holds that committing such acts to prevail in a commercial competition often constitutes an unfair business practice.
In a joint statement, Contender executive producers Mark Burnett and Jeffrey Katzenberg said that "it would be terribly damaging to the sport, to our show The Contender and to all the participants if anyone were to profit from or gain an unfair advantage by breaking the law."
As evidence supporting its claim that Champ producers ignored or defied state boxing regulations, Contender producers introduced an Aug. 10 report written by former California Athletic Commission chairman Sanford Michelman, who was on the commission during the time that Champ's fights took place, detailing the problems and violations during Champ's filming. Among his conclusions, Michelman recommended that the attorney general of California seek "an injunction against both airing and receiving remuneration for the promotional activities associated with the violations" by Champ.
The commission is scheduled to consider Michelman's report during its Sept. 3 meeting. However, since several previous attempts by the commission to take up the issue have been delayed (in part due to the expiration of Michelman's term on Aug. 1), it is possible that the issue will not be addressed by the CAC until after Champ debuts. Meanwhile, California Deputy Attorney General Karen Chappelle told Reuters that the report would have to be formally adopted by the CAC before the AG's office would take ANY action.
Burnett and Katzenberg claimed that the delays at the CAC forced their actions. "The significance of the chairman's findings left us with no choice but to ask the court to issue a restraining order to prevent The Next Great Champ from using any film of any boxing match that wasn't lawfully promoted. These laws regulating boxing promotion are designed to protect the health and safety of the fighters and the sport of boxing."
Fox, which would appear to be at a public-relations disadvantage as the promoter of the "copycat" show, chose to wrap itself in the banner of the First Amendment. Fox spokesperson Scott Grogin dismissed the lawsuit as "an effort to stifle competition by seeking an inappropriate prior restraint of a broadcast."
Of course, Fox also raised the possibility that Michelman was biased by his association with the producers of The Contender. Judge Hart Cole granted Fox's lawyers discovery of all documents related to communications between Michelman and the producers of The Contender.
We admit that the sheer number of reality-show thefts by Fox this year, combined with Fox's efforts to reach the airwaves first, creates a negative expectation about Fox's compliance with boxing regulations. However, we'll reserve final judgment until we start to see the evidence, which we expect will begin dribbling out to the public at Friday's Aug. 27 hearing.
For now, we'll rest between rounds.
