Yesterday in Los Angeles, U.S. District Court Judge Gary Feess advised that he was unlikely to grant CBS’ request for a Temporary Restraining Order to forbid ABC from airing its new reality show, The Glass House. While he did not issue a formal opinion or written order, the throngs of media assembled have reported on his statements before a packed court house. (I have attached the minute order and parties’ respective briefs in PDF format below). Given that The Glass House show is set to premiere on Monday, June 18, it is highly unlikely that Judge Feess will change his mind and restrain ABC from rolling out the show.

CBS brought the lawsuit last month, contending that a team of 19 individuals who had worked on its Big Brother reality show were using its trade secrets and violating its copyrights by working on ABC’s new show. The template of of the two shows was very similar — i.e., a show following a group of unrelated people living together in a house all summer, with individuals being eliminated until a finalist wins a prize. For more background on the show, please see my earlier post.

The minute order (which is a short filing in which federal courts simply memorialize that a conference or hearing took place with a brief description of the subject matter) does not provide any insight on the court’s inclination.  However, the many media reports indicated that Judge Feess applied an appropriate balancing test, by looking at the relative strength of the trade secret and copyright claims, the harm to CBS, and the harm to ABC and other third parties (such as the contestants).

The Hollywood Reporter, The New York Times and other media have reported that the judge was unimpressed with CBS’ claims. According to The New York Times, Judge Feess started the Friday hearing “by saying he was not inclined to accept CBS’s arguments that it would win a copyright lawsuit against ABC and its corporate owner, Walt Disney. At the conclusion of the argument by lawyers from each side, the judge said he was not granting CBS the injunction request Friday and was unlikely to do so before the start of ABC’s show on Monday. He said he would read the accompanying materials before making a final decision.”

As for the trade secrets claim, CBS’ Motion for TRO emphasized that its production process, multiple camera feeds, and its production manual outlining the manner of maintaining the show’s fast pace were trade secrets. The Hollywood Reporter reported that Judge Feess rejected those claims, reasoning that “he did not see that there were trade secrets being stolen because CBS has allowed tours of the Big Brother set and control room, and much of what is being done is common industry practice.” As for the copyright claims, the media quotes the judge as stating that many of the elements of the show were “generic” and that while there were similarities between the two shows, “the idea, in my view, cannot be copyrighted.”

Judge Feess was apparently also unpersuaded that CBS would be irreparably harmed and was quoted as saying he believed that ABC would be damaged by an injunction because ABC would lose its investment in the show, the crew would lose their jobs, and the contestants would lose the time and effort they put into the show.

CBS has announced its intention to fight on (after waging such a high profile campaign, it really cannot say anything else at this stage). However, as a practical matter, the loss of an important and contested injunction at the outset of a case is generally fatal to a trade secrets claim. In the normal course, an unsuccessful trade secret claimant will quietly dismiss the case at an opportune time. However, as ABC has apparently filed a counterclaim against CBS, that option has been taken off the table.

CBS TRO Motion.pdf (332.51 kb)

ABC Opposition.pdf (92.71 kb)

CBS v ABC Minute Order.pdf (8.33 kb)