Who said the Western was dead? All of the theft of intellectual property going on in reality TV these days is leading to more shootouts (albeit behind the scenes) than a John Wayne film festival.
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The latest show to put a gleam in intellectual property lawyers' eyes is Mark Burnett's tentatively-titled Rock Star, which this week had its U.S. broadcast rights for the summer of 2005 sold to CBS. Rock Star, a competition to find a new lead singer for the superstar Australian band INXS, has achieved a rare double: it is both (i) accused of theft and (ii) being stolen from at the same time. And, while the theft charges do not reach to executive producer Burnett, a planned ripoff of Rock Star appears likely to escalate the rapidly-growing battle between the Oz-born Burnett and the Fox network, which is a division of Oz billionaire Rupert Murdoch's News Corporation.
(Note: Since the "Aus" in "Australia" is pronounced "Oz," Australians often use Oz as a short form. We like it, and we'll do the same.)
In the first idea-theft charge, the Daily Telegraph (located in Sydney and also owned by News Corp.) charged that the original idea of using a reality show to find a replacement for the late Michael Hutrchence in INXS was pitched to the band by Michael Dalton, a producer at Australian broadcaster Nine Network, last year. According to the description in the Daily Telegraph, Dalton proposed a reality show called New Sensation, focused on the band's search for a lead singer, to INXS's manager Dave Edwards. However, Edwards turned him down flat ... then misappropriated the idea and pitched it to Mark Burnett this year, leading to Rock Star.
The Daily Telegraph quotes an industry source claiming that Edwards turned the offer down because INXS had already found a lead singer: Suze DeMarchi, the former leader of the Oz band Baby Animals. Ms. DeMarchi, a noted lyricist and charismatic live presence who had moved to the U.S., had done some appearances with INXS dating back to 2000 ... and she and INXS keyboardist/composer Andrew Farriss were even writing songs together for an upcoming INXS album.
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In fact, DeMarchi was not the first lead singer that INXS had used after Hutchence's death. Terrence Trent D'Arby did a one-off concert in 1999 for the opening of Stadium Australia. Then Jon Stevens spent 3.5 years as the lead singer on a contract basis, although he never became a full-fledged band member. He didn't formally leave until October 2003 -- which is when Nine Network contacted the band, only to be told that Jon had already been replaced.
Another anonymous source "close to the band" disputes the account of the Nine Network show as a search for a lead singer, insisting instead that the pitch was for a "rockumentary" like The Osbournes. The source said that "we couldn't do it because at that time we already had a singer and the band wasn't on the road or in the studio. And that was the extent of the conversation."
This denial raises questions of its own: why should the fact that INXS "already had a singer" hinder a reality-documentary show? And doesn't the timing of Nine's call, just after the departure of Jon Stevens, make the argument that all Nine wanted to do was film The Oz Osbournes seem as unlikely as a koala eating maple leaves?
As far as DeMarchi goes, an INXS spokesperson says that the songs that she and Andrew Farriss wrote together will either show up on a DeMarchi solo album or the post-Rock Star INXS album. We root for the DeMarchi solo album. (We also wish she'd record it in her former hometown of Boston.)
Perhaps the real reason that the band turned down the Nine Network show can be found in another comment from the same source: "The only reason INXS is even doing the show is because Mark Burnett came on board. There's no way we would ever have done it with some rinky-dink Australian company." We're sure Oz media billionaire Kerry Packer, owner of Nine Network, appreciated hearing the dominant power in Australian TV described as "rinky-dink."
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For its part, INXS claimed that they came up with the idea for the show five years ago, even before reality TV became an international sensation. Mark Burnett admitted right from the beginning, before news of the Nine Network pitch had leaked, that INXS brought the idea to him in April. Burnett noted that "I am a long-time fan of INXS and feel very fortunate that INXS approached us with this idea and have entrusted us with their future."
Thus, even though it doesn't look like Mark Burnett played any role in it, it does appear that some form of idea theft may have taken place. However, nothing is likely to come of it, because Nine Network has long been one of Mark Burnett's leading customers and supporters, airing both of Burnett's U.S. smashes (Survivor and The Apprentice) and even making a one-off Survivor Australia. We have no doubt that a deal will be struck between Mark Burnett and Nine Network that will lead to Nine getting the broadcast rights for the show while "quitclaiming" any rights to the idea (which means that the deal won't expressly say that INXS stole the idea -- an important point, since neither Nine nor Burnett want to impugn INXS's credibility before the show airs).
Perhaps more interesting than the original idea theft allegation is the disclosure of Fox programming plans which have brought Burnett back into conflict with the network for the third time in less than six months, as Fox continues to clone his projects. First, after the smashing success of The Apprentice, Fox promptly announced Branson's Big Adventure. At the time, Fox's defense against theft charges was that the contestants on Branson's show wouldn't be "selling lemonade" (a reference to the first task on the first Apprentice) -- which is a non-denial of the fundamental theft of concept. Then, after Fox lost a bidding war with NBC and ABC to acquire Burnett's The Contender, it promptly announced another clone, entitled The Next Great Champ. Burnett was furious that Fox moved to steal a concept after it had lost a bidding war, referring to Fox's show as "creatively outrageous."
Thus, when Burnett launched Rock Star and hired David Goffin, the supervising producer of American Idol to helm it, some observers (such as Variety) viewed these moves as revenge against Fox and American Idol. We, however, diagreed, noting among other things that (i) Goffin had started out working for Burnett and (ii) adding a singer to an established rock group is a different challenge than finding the best amateur pop singer in a particular demographic. Instead, Burnett's real revenge was that he refused to pitch Rock Star to Fox.
However, according to the Los Angeles Times, Fox clearly didn't think that Rock Star was a clone of Idol -- as evidenced by the fact that despite not having had the benefit of receiving a formal series pitch from Burnett, it still rushed to put yet another Burnett-clone. Unnamed Fox executives say that Fox has rushed through a show that will ... find the lead singer for a band with an all-capital letter name whose lead singer died unexpectedly.
In Fox's case, the band will be TLC, the all-girl soul/rap group led by Lisa "Third Eye" Lopes (who was as well known for burning down the million-dollar mansion that belonged to her boyfriend, NFL star receiver Andre Rison, as for her music), who died in a car crash in 2002.
Needless to say, the introduction of a third Burnett clone has ramped up the tensions between Mark Burnett and Fox. One wag suggested that the Fox network should change its name to match its apparent motto: "Steal Only Burnett," or SOB. Burnett told the LA Times that "it just makes me laugh. If I decide to produce a show called Dogs--t, I'll get a call saying there’s a new show someone’s doing" with the same concept.
The puzzling question is why Fox and News Corporation have decided to pick this particular battle. The anonymous Fox executives who talked to the LA Times gave another non-denial of stealing the show's concept, saying only that they started trying to cast their show before Burnett had publicly announced his -- which is far different from saying that they had no knowledge of the INXS show at that time. They also took more jabs at Burnett, with one saying that "I don’t think anyone cares about INXS anymore." Of course, if that were true, we wonder why so many News Corporation papers such as the Daily Telegraph have been devoting so much ink to taking shots at INXS.
Although we think the story about INXS's misappropriation of the series concept is a great tale, which is why we've told it in such length, we also admit to finding it highly suspicious that News Corp., which is ripping off Rock Star at its Fox division, is also the primary newspaper organization attempting to taint Rock Star's claim to ownership of its own intellectual property.
In the "battle of the bands," there is little doubt that INXS without Michael Hutchence still has a lot of talent and ability, while TLC without Lisa Lopes is like Wings without Paul McCartney or Wilco without Jeff Tweedy. So what does News Corporation hope to accomplish with this cheap clone?
We're beginning to wonder if this fight ultimately isn't personal. Maybe Rupert Murdoch doesn't like his fellow Australians Mark Burnett and Kerry Packer getting so much of the limelight. In the meantime, it appears that one casualty of the battle will be the current (and perhaps only) reality series that Burnett made for Fox, The Casino, which opened to disappointing ratings in its premiere last week.