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simon houpt: media

Idea for a reality television show: two teams of network-TV lawyers face off in a series of challenges that don't end until everyone is dead.

Okay, so no one would watch – you need to have combatants that viewers might actually care about – but at least you'd get rid of the lawyers.

Last Friday, a team of legal eagles for CBS Broadcasting Inc. argued in a California court that ABC should be prevented from airing another voyeuristic reality-TV show that they felt was too similar to their long-running Big Brother.

The judge denied CBS's request for a temporary restraining order, allowing The Glass House to make its scheduled debut Monday night.

While legal spats over intellectual property have popped up regularly since competitive reality-TV shows first exploded into our living rooms 12 years ago, some producers say the number of programs on the air nowadays makes it more important than ever to protect their creations from copycats.

But there's still no case law, and if the courts are wise they'll throw out everything that comes their way. Because while copyright is vital in helping many creative fields flourish, it's an impediment in the continuing evolution of the reality genre, which regularly accounts for many of the top-rated shows.

And producers ultimately live or die by the product they put on screen.

In the current case, CBS could have saved itself the trouble and expense: Viewers who tuned in to Glass House saw the same old tropes: the scantily clad ladies, the class clowns way past their best-before dates, the convoluted competitions we've all come to know if not love.

Which may be why, even with the publicity boost from the lawsuit and the subsequent on-air claim of being "the show they didn't want you to see," Glass House placed seventh in prime-time ratings, with fewer than 4 million U.S. viewers. (It airs in Canada on CTV.)

It's hard to see how Big Brother might have suffered any significant damage. Still, CBS will continue its case, with a troubling legal line. It is arguing that at least 19 people who had worked on Big Brother broke their non-disclosure agreements merely by being involved in the production of Glass House. If CBS is successful, it could preclude reality-TV producers from developing new shows, harming the entire genre.

The fact is, "there's nothing really preventing anyone from copycatting if they want to do that," admits Julie Bristow, the executive director of studio and unscripted programming for CBC Television.

Not that it's easy. "Shows like Dragons' Den have a very explicit recipe to them that makes the format successful," she says. "In some ways it's obvious what the component parts of that recipe are, but I think what you're buying there [as a licensee] is the R&D that went into some DNA. That's going to ensure that if you buy that recipe – and localize it properly, which is critical to these formats as well – you're probably going to have a good chance of having a successful show come out the other end."

For producers, "the best way to protect yourself is to get to market quickly, to execute better," argues John Brunton, the chairman and CEO of Insight Productions. The Toronto-based production company's reality shows include CBC's Battle of the Blades, Global's Canada Sings, and CTV's Canadian Idol.

Brunton says that selling a show format into other territories typically earns license holders 5 to 10 per cent of a production's budget. For a show like Fremantle Media's American Idol, which has sold into more than 40 territories, that can translate into hundreds of millions of dollars.

Some producers are protecting themselves from theft through innovative approaches to licensing. Endemol, the London-based production and distribution company whose shows include Fear Factor and Big Brother, makes it easy for international producers to do a local version of its Jackass-style competition series Wipeout by deploying a so-called 'carousel' production approach.

Endemol constructed a large set in Argentina which can be customized for each territory, enabling producers to fly in a host and competitors for a concentrated production period. The process allows for maximum efficiency, making it less enticing for an international producer to rip off the idea and try to replicate the success back home.

Brunton is mulling a carousel approach for localized international versions of Battle of the Blades – shooting in downtown Toronto instead of, say, Stockholm.

"The set-up of that show is very complicated," he says. "A lot of things are particularly unique to that show."

For the time being, the Canadian version of Battle is officially on hiatus while CBC struggles with its budget cuts. Which means that, if the show does sell internationally as planned, Canadian fans might someday soon be able to troop down to a Toronto rink to sit in the studio audience while famous hockey players stumble through their first awkward figure-skating moves. They'll just have to wave Swedish flags.

And, if we're lucky, there won't be a single lawyer in sight.