ABC Show Survives CBS Challenge

From Bloomberg News

CBS television, whose hit unscripted show "Survivor" has spawned numerous imitators, Monday lost a legal bid to block rival ABC from airing its version of a popular British import featuring celebrity contestants.

U.S. District Judge Loretta Preska ruled that Walt Disney Co.'s ABC could go forward with "I'm a Celebrity ... Get Me Out of Here!"

CBS, a unit of Viacom Inc., contended that the ABC program, which is scheduled to air next month, infringed the "Survivor" copyright by mimicking its settings and stunts, including the eating of insects. CBS had sought a preliminary injunction to stop ABC from broadcasting "Celebrity."

Preska said that to provide protection to the combination of "generic elements" that constitute the "Survivor" show "would stifle innovation and stifle the creative process. I find the two shows to be different."

"The judge ruled that due to its quality and tone, the ABC program is substantially different than "Survivor,' " CBS spokesman Dana McClintock said. "We respect the ruling and are now studying our options."

Staged and unscripted shows, including Fox network's "American Idol: The Search for a Superstar," last summer's second-highest rated show in the U.S., and ABC's "The Bachelor," the No. 7 rated show this season, attract large audiences. Four of the top 25 programs among 18- to 49-year-old viewers this season are unscripted.

"We're delighted with the court's decision, which we believe is entirely correct, and look forward to giving the American public a chance to see this fresh new reality show that has played to enormous audiences in the United Kingdom," Disney spokesman John Spelich said.

ABC lawyer Thomas Smart told Preska that CBS is "asking the court to give them a monopoly" on this type of show. The judge said she was concerned that CBS might be seeking to copyright the idea underlying "Survivor," which isn't permitted, rather than the unique way it's expressed through the show.

"My continuing problem is that it sounds like concept," Preska told CBS lawyers before she issued her decision. "It doesn't sound like expression."

"Celebrity" is scheduled to air on consecutive nights in February, during the sweeps period used by local stations to set advertising rates. The show is "the centerpiece of the sweeps," Smart said. Viewers will be invited to phone in and vote celebrities off the show.

The program features B-list personalities fending for themselves in harsh, remote settings, said Jack Allen, who oversees the creation of fact-based shows at Grenada, which produced the British prototype for "Celebrity." Grenada also is a defendant in the case.

"Britain has a national obsession with celebrities," he testified last week during a two-day hearing in Manhattan.

On "Survivor," ordinary people are placed in challenging locales where they try to avoid being voted off the show by other contestants. The Emmy-award winning show garnered 125 million viewers in its first cycle of episodes, CBS said.

"Survivor" employs harsher settings and pits contestants against one another for a $1-million prize, the judge said in her ruling, whereas ABC's "Celebrity" is much less competitive and all winnings are donated to charity. "The tone and feel of 'Celebrity' is one of comedy," Preska said.

The production values of the two shows also are very different, she said. "Survivor" features "lush, artful photography," whereas "Celebrity" is similar to home video, the judge said.

CBS President and Chief Executive Leslie Moonves testified last week that "Survivor" has dramatically improved the network's ratings among younger audiences. He said it's the only CBS show his three teenagers watch.

In the November ratings period, "Survivor: Thailand," the fourth installment of the show, finished first among viewers 18 to 49.

CBS filed suit in November. The network alleged that the ABC program "imitates the distinctive style and the look and feel" of "Survivor," including overhead views of fireside chats and elimination ceremonies, panoramic shots of jungle landscapes and scenes of participants "privately speculating on upcoming votes."

Lawyers for ABC argued that even if the ideas behind the shows are similar, the details aren't. "These shows are dramatically different," Smart told Preska.

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