UPDATE: CBS’ Restraining Order Request Over ‘Glass House’ To Be Denied

UPDATE: CBS issued the following statement after today’s court hearing.

“We appreciate the court’s continuing consideration of this case and our request for an injunction. Win, lose or draw on the temporary restraining order, we 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. 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.”

PREVIOUS: CBS today lost its request for a temporary restraining order against ABC’s Glass House, at least for now. “There is no injunction from the bench today, said Judge Gary Feess at the end of today’s hearing. “I think it is unlikely I will change my inclination but I do want to look at any materials again.” The judge said he would issue a formal order soon. Conceding that Glass House will likely debut on Monday as planned, CBS lawyer Scott Edelman said after the hearing he was “disappointed” by the judge’s refusal to issue the TRO. “This was step one to prevent the show from airing, but we will continue with discovery and the trade secrets issue.” ABC representatives would only say, “listen to what the judge said, that was our argument.”

With 80 hours until ABC’s scheduled premiere of new reality series The Glass House, lawyers for the network and CBS met in a courtroom this morning for a hearing on CBS’ request for temporary restraining order against Glass House over similarities to its own Big Brother that would block the debut of the ABC series. Judge Feess opened the hearing by saying that he is “inclined to deny the application for TRO.” “CBS has not convinced me that they will succeed in their copyright claims,” he said. “CBS seeks to protect the idea of a show of contestants in a house where cameras are running…you can’t copyright that…. I don’t know if Glass House will have any effect on Big Brother... It will continue to go forward and be successful.” Feess also mentioned there might be some monetary compensation from ABC to CBS in the case.

In his arguments, CBS’ lawyer Scott Edelman tried to persuade Feess that Big Brother “is unique on TV.” Citing the difference of “the idea and the expression of the idea,” Edelman is using a chart listing a dozen similarities between the two shows. “They’ve taken CBS’ number one summer show and they’ve tweaked it,” he said.

The Judge repeatedly knocked down Edelman’s contention that Big Brother is a show with unique and protectable elements. Feess joked with the lawyer that when he first heard of Big Brother he thought it was “just Survivor in a house.”  Earlier the judge, who made it clear he’s no fan of reality TV, noted research that he had done on Wikepedia as to the number of shows that are similar to Big Brother. The CBS lawyer disagreed. “This is the first time that a reality show has been copied lock, stock and barrel with minor changes around the fringe,” he said. Even with clips from Glass House and Big Brother played in court, Feesse did nothing to convey he had been persuaded by Edelman’s argument.

“The voyeuristic feel is the embodiment of the expression of Big Brother and found on both shows,” Edelman continued. He brought up the deposition of Glass House showrunner and former Big Brother producer Kenny Rosen who had signed a non-disclosure agreement while on Big Brother. “We thought the record that was developed was extremely compelling,” Edelman said. “We clearly have violations of an NDA and violations of trade secrets.”

In his turn, ABC’s lawyer Glenn Pometantz addressed CBS’ claim that Glass House is taking on Big Brother trade secrets. “ABC does not want to use any of CBS trade secrets, we don’t need them,” he said. Mocking CBS’ citing the use of yoga and tattoos in Glass House as offenses, he noted, “they have yet to identify what we are doing wrong.” The lawyer reiterated what ABC has said in its filings that, after spending millions of dollars to develop and promote Glass House,  the imposition of a TRO would “be a huge problem for us.”

In his response, CBS’s lawyer Edelman brought up the fundamental issue behind this case and many similar ones before it. “This comes down to is there going to be any copyright protection in the reality genre,” he said.

CBS filed its request on June 7 for a temporary restraining order against the ABC reality show. Yesterday, the judge ruled that CBS could file its documents in support of its TRO request under seal. On May 10 CBS sued ABC and several former Big Brother producers and employees over Glass House. That lawsuit alleges copyright infringement, trade-secret misappropriation, unfair competition, breach of contract and conspiracy among other claims. Almost immediately, ABC dismissed the suit as having “no merit” and has since said “CBS cannot lay ownership to the entire genre of reality television.”  Since the lawsuit was filed, with the clocking ticking on Glass House’s debut, the two networks have been throwing legal grenades at each other in both the discovery process and over the TRO application. CBS conducted a long deposition on June 3 with former Big Brother producer Kenny Rosen in which the producer noted some reference to Big Brother material In their June 7 TRO application CBS cited as this deposition as proof of their claims of breach of NDA, copyright infringement and trade-secret misappropriation. Claims that ABC again has denied and dismissed. Last week, less than 24 hours after CBS had filed their TRO application, Judge Feess ruled in favor of CBS’ desire to fast track the process. ABC filed their opposition to the TRO motion on Monday. The network said in their response to the TRO request that “there was no conspiracy to hire away Big Brother employees.” ABC also added that while it believed “CBS’s copyright claim will not succeed” nonetheless “a temporary restraining order, even for a week, would seriously undermine the show’s potential success.” The network said they had spent $16 million promoting Glass House’s debut. CBS replied on June 12 “ABC’s protestations that injunctive relief would harm their business are of no moment because any harm is of their own making…” On Wednesday Judge Feess ordered that the TRO hearing would occur today.

As these legal machinations were occurring, ABC rolled out the Glass House contestants and heavily promotion of the viewer driven voting show both on air and online. Yesterday CBS filed a screen shot heavy declaration from their copyright expert Jeff Rovin that reiterated the network’s contention that Glass House “is a copy of Big Brother.” ABC responded by calling the submission indicative of “the frivolous nature of their claims.” CBS is represented by Scott Edelman, Michael Seitz, Theane Evangelis Kapur and Blaine Evanson of Gibson, Dunn & Crutcher. ABC is represented by Glenn Pomerantz, Jonathan Altman and Carolyn Hoecker Luedtke of Munger, Tolles & Olson.