In a battle between competing reality shows, California courts have once again confirmed that commercial speech is protected by the First Amendment.
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On Friday, a California trial court ruled that efforts by the producers of NBC's boxing reality-competition show The Contender to block the airing of Fox's quickly-produced copycat show The Next Great Champ were blocked by the First Amendment. The ruling brings a sudden end to the pre-show court battle between the executive producers of the NBC show, Mark Burnett Productions and DreamWorks SKG, and Fox and Endemol USA, the producers of Champ, alleging unfair competition. As a result, Champ will debut as planned, on Tuesday, September 7.
The ruling, by Judge Lisa Hart Cole of the California Superior Court in Beverly Hills, notes that, although the injunction request focused on alleged fight-promotion violations by The Next Great Champ, "[w]hat the plaintiff is really concerned about is being aced out of a broadcasting concept." Thus, the issue "ultimately" was about "money" -- and cases that may be resolved by money damages generally do not qualify for the prior restraint of an injunction.
Under these circumstances, Fox's First Amendment claim that prior restraint of free speech (such as the airing of Champ) was inappropriate as a matter of law for any offense that could be resolved by money damages prevailed, and the broadcasts of Champ will go forward. However, the underlying claims of unfair competition and money damages against Fox and Champ can also go forward.
Perhaps hoping to capitalize on viewer curiosity, Fox has scheduled Champ into heavy rotation on its schedule this month. After each September episode (on the 7th, 14th, 21st and 28th) airs on Tuesday (9 PM ET/PT), it will also encore on Friday (also 9 PM ET/PT) -- the originally-planned slot for Champ. Beginning in October, the Tuesday-night time slots will be filled by Major League Baseball playoff games, so Champ will air exclusively on Friday.
In a statement to the Associated Press, DreamWorks spokesman Andy Spahn noted that "[t]he court action ... merely rejected one possible remedy" for the violations reported in a report by former California Athletic Commission chairman Sandford Michelman. However, the state of California itself seems unlikely to take any action to remedy these alleged violations in the near future, since acting CAC chairman Chris Mears told Daily Variety that he was still trying to organize a meeting for September to address a possible referral of the issue to the state attorney general's office, and there is no guarantee that the attorney general's office will take action even if the matter is referred to it.
By contrast, diminutive Fox reality-show honcho Mike Darnell (the leader in Fox's so-called "Great Reality-TV Robbery") claimed in an interview with the Philadelphia Inquirer that the court decision was "definitely a technical knockout. On a scale of one to 10, this is a nine-plus."
Since the court ruling doesn't appear to address the underlying claim of unfair competition but rather focuses on the ability to impose prior restraint as a remedy for that claim, we have a difficult time understanding Mike Darnell's scoring system ... which seems as cockeyed as the one employed by Olympic judges during Roy Jones' 1992 gold-medal bout against Park-Shi-hun.
Just before the hearing -- but unrelated to it -- the Los Angeles Times reported that both The Next Great Champ and The Contender received waivers of some California boxing regulations. The regulations that were waived included the requirement that boxing match results be made public immediately -- a regulation intended to prevent promoters from inflating a boxer's record by claiming wins in "secret" fights (which isn't much of an issue with these high-profile reality shows). A second waiver provided that the two shows only had to pay California broadcast-license fees for the boxing matches for the actual length of the matches shown on the air, not the full length of the shows.
Although the tenor of the article indicated that the shows were somehow complicit in taking advantage of California rules by requesting these special waivers, both requests seem unremarkable and unobjectionable to us.
One rule that was not waived, however, is the rule that is primarily at issue in the court battle: the requirement that a California-licensed promoter be used to promote all bouts in the state. The producers of The Contender and the CAC report claim that The Next Great Champ failed to adhere to this rule.
Also at issue here -- although not a part of the injunction request -- is the amount of intellectual property, if any, stolen by The Next Great Champ from The Contender. Champ host Oscar de la Hoya claims to have come up with the idea for Champ independently, but his claim does not seem to hold up under scrutiny. Meanwhile, Fox's Mike Darnell claimed that the idea of a boxing reality show was "generic" and that "every producer and their mother had this idea. We got pitch after pitch after pitch, like everybody in town, from MGM, Paramount, Mike Tyson, Don King, Lennox Lewis."
Although the idea of a boxing show may have been generic and, as Fox President Gail Berman has pointed out, an idea by itself is not copyrightable, the most troubling fact about Fox's copycat behavior with The Next Great Champ is that it appears to have stolen the execution of the boxing reality-show idea developed by the producers of The Contender. We will be interested to see whether this becomes the focus of the ongoing litigation between the two shows now that the injunction request has failed.
We also note that, if the idea of a boxing show was generic, then why did Fox engage in a heated bidding war with NBC to get the rights for The Contender in the first place? The reason seemingly has to be that Fox preferred the expression of that idea -- in other words, the execution -- in The Contender to all of the other proposals. However, without actually seeing the shows, it is difficult if not impossible to determine whether the copycat (The Next Great Champ) really infringes upon the intellectual property of the original (The Contender).
In the meantime, as The Next Great Champ prepares to begin its run, Fox has revealed that 82-year-old training legend Lou Duva will join Tommy Brooks (who took over as trainer of Mike Tyson after Tyson snacked on Evander Holyfield's ears, only to be fired just before Tyson's loss to Lennox Lewis) as trainers for the fighters during the series. Although Oscar de la Hoya, Lou Duva and Tommy Brooks lack the "star power" of Contender sidemen Sylvester Stallone, Sugar Ray Leonard, George Foreman and Jackie Kallen, they make up a formidable team of boxing experts in their own right.
Champ's in the ring bouts, leading to a reward that Fox considers to be "every fighter's ultimate dream - a professional contract with Oscar de la Hoya's Golden Boy Promotions and a title fight within the World Boxing Organization (WBO)," will hit the airwaves about two months before The Contender, which is still scheduled to premiere in November. However, the winners on The Contender get $1 million for the victory -- a purse which we think would be the ultimate dream of more boxers than a potential title shot for a fourth-tier title would be.
In boxing, the three major title-sanctioning bodies are the World Boxing Association (WBA), World Boxing Council (WBC) and International Boxing Federation (IBF). The maze of sanctioning federations was one of the areas that Contender executive producers Mark Burnett and Jeffrey Katzenberg had wanted to challenge ... before their dream of cleaning up the dirty business of boxing collided with the reality of a Fox copycat show.
Considering that Mark Burnett has dropped previous legal challenges against possible copycats when his bid for an injunction failed, we shall see if this case proceeds past the injunction stage. From our viewpoint, the issues still open between these shows represent a bare-knuckles fight as interesting as any that might be presented in the ring.