But Is He Wrong?

Nikki Finke obtained a memo from an ABC executive, Howard Davine, urging producers to think twice about buying foreign shows when they might be able to rip off those shows for free. Or as he puts it:

What is often overlooked, or not fully appreciated, are the complexities associated with negotiating format deals, coupled with the fact that often-times what is appealing in the format may be nothing more than a general underlying premise, which, in and of itself, may be no reason to license the underlying property.

There’s a lot of outrage about the memo, some of it deserved, and the executive was certainly unwise to be so blunt in his call for knock-offs. (And if he thought nobody would post the memo on the internet, he’s not just unwise but dumb.) But, you know… he has a point. A lot of television shows, including many that you love, do exactly what he describes in the memo: they imitate the “general underlying premise” of another property, without actually being based on it.

It’s a practice common to all entertainment, but particularly to television, because television is sort of a cheaper form of other, more prestigious art forms — it’s like theatre, but less respected, like movies, but with less time and money — and because it has to turn out so much product so fast, a ton of television is recognizable as an imitation of something successful. And it doesn’t count as stealing, because ideas in and of themselves aren’t copyrighted. It’s the form that those ideas take, the expression of those ideas, that is a copyrighted work. If a show leeches off the ideas of something else, that’s not stealing, that’s just tradition. Arrested Development doesn’t have to pay a fee to Wes Anderson, even though everybody has acknowledged the show’s debt of inspiration to The Royal Tenenbaums. The creators of The A-Team, assigned to write a pilot, described their story-making process as follows: “Let’s rip off The Magnificent Seven.” (Which was an adaptation of a foreign property, but that’s another story.) Family Guy is a lot like The Simpsons, but it’s not actually based on The Simpsons, at least not so’s you could prove it in court.

What Davine is saying in the memo is that it may not be worth paying to adapt a show (or a movie, or a book) unless it’s really the original property as a whole that is interesting. Sometimes it might make more sense to do something similar but technically original. I can’t really argue with that. U.S. television is filled from top to bottom with shows that are based on that exact notion: do something the same, but different.

Of course, Davine screwed up by putting this in print, because now he’s made it harder for ABC to do the perfectly reasonable thing he suggests. Now if ABC comes out with a show that’s sorta kinda like a successful show without actually being based on it — a perfectly traditional thing to do, all over the world — producers can use the existence of this memo as proof that they’ve been stolen from; they probably wouldn’t win a lawsuit anyway, but it would make ABC far more afraid of lawsuits and more likely, not less, to license whatever foreign property they’re interested in.

But no, the idea itself doesn’t bother me at all. He’s just saying what every network executive says: give me something that’s the same as a current hit, but different enough so we don’t get sued.

I do agree, however, that this memo is yet another indication that Canadian producers should not depend on our Southern cousins buying the rights to Canadian shows.