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Can CBS Withstand "Survivor" Lawsuit?

Aired May 1, 2001 - 12:30   ET


ROGER COSSACK, CO-HOST: A "Survivor" contestant ditches the tribal council for a courtroom. She's suing CBS and a production company, claiming the TV show was rigged. The network denies those claims and the producers of the show filed a counter suit of their own. Today on BURDEN OF PROOF, facing reality.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

San Francisco attorney Stacey Stillman was a contestant in the first season of CBS's hit TV program "Survivor". Now, in a lawsuit filed last February, she claims producer Mark Burnett urged two of her fellow "Survivor" contestants to vote her off the program instead of another member, Navy SEAL Rudy Boesch.

GRETA VAN SUSTEREN, CO-HOST: Survivor Entertainment Group has filed a countersuit and they have denied the charges in Stillman's complaint. The producers claim that by going public with her survivor story, she violated a confidentiality agreement about the off camera workings of the program.

COSSACK: Joining us today from San Francisco is attorney and investigative journalist Peter Lance. Now, he's the author of "The Stingray: The Lethal Tactics of the Sole Survivor," which was published last January. And from Los Angeles, we are joined by entertainment lawyer Pierce O'Donnell, who represents Mark Burnett in an unrelated case.

VAN SUSTEREN: From New York, we're joined by entertainment lawyer Stephen Sheppard and here in Washington, Rebecca Jennings (ph), copyright law professor Peter Jaszi and Joanni Jayjay (ph) -- and in our back row: Marsha Griffiths (ph) and Juliet Jivers (ph).

Peter Lance, let me go to you in San Francisco. Give us more background on this lawsuit. What provoked her to file it?

PETER LANCE, INVESTIGATIVE JOURNALIST: Well, you know, Stacey initially felt that she had been selectively edited on the show, that they had portrayed her in a way that didn't really reflect who she was. The confidentiality and life rights agreement, which we actually have now on our Web site, is incredibly restrictive. It basically lets them do whatever they want. They can portray the castaways anyway they wanted.

So that was her initial sense. But during the summer she was contacted or spoke to Dirk Been, one of the other castaways, who reportedly told her that on the morning of her vote, Mark Burnett pulled him aside and influenced him or suggested to him that he vote her off. And she...

VAN SUSTEREN: Well, wait. Let me stop you for a second. What was the influence in the form of, gee, you know, Stacey ought to go or it's important you Stacey off or boy, you know, Stacey probably is going to get the ax?

COSSACK: Get the ax?

LANCE: Well, again, I wasn't there, so it's double or triple hearsay. But she alleges in her complaint that Dirk basically said that Mark Burnett told him that, you know, Stacey wasn't very strong and there would be a lot of physical challenges ahead and it would be better to keep Rudy. But in her complaint, she alleges the existence of a smoking gun, essentially a letter from Dirk to Mark Burnett where he affirms these charges, and that's what we're trying to get. We...

VAN SUSTEREN: But where Dirk affirms it, not where -- right?

LANCE: Where Dirk basically agrees with Stacey. This is the allegation. And that's why we went into court in L.A. last week and filed an amicus brief and a motion to unseal, because Dirk's six-hour deposition and this smoking gun letter were sealed at the request of CBS that wants to keep the lid on this whole thing.

COSSACK: Peter, let's back up a second here. First of all, no one forces any of these contestants to go on that television show so that when CBS show up and says, you know, this is the most restrictive contract we can think of. You know what? It's one-sided. It doesn't help you, it helps us. If you get voted off that island, you don't get any money. The winner gets the money and it's, and you can't talk about this at all, that person who wants to be that contestant can say you know what? I don't like this. I don't think I want to participate in something as one-sided as this is and just walk away, can't they?

LANCE: Absolutely, but, you know, the thing is remember, this is an emerging genre. This genre that, which is now sweeping television, by the way, the rules are more or less being written every day and most of the people that sign this agreement, I talked to Dirk's mother. She showed it to a lawyer. The lawyer said don't sign it. Dirk really wanted to go on the show and that agreement was the quid pro quo.

You could not get on the show if you didn't sign it.

COSSACK: And I say...

VAN SUSTEREN: So basically...

COSSACK: And I mean, that's right. VAN SUSTEREN: So basically my thought is well then tough, you know?

COSSACK: I might agree that it's one, that CBS has the power and these people certainly want to take a shot of winning a million and they want to get on TV and I'm going to agree with you without even seeing it that it's one-sided in favor of CBS. But isn't like what Greta just said, isn't it kind of like tough?

LANCE: Well, but, you know something, Roger? Let's just go to the issue in the case, as we used to say in law school. Paragraph 13 of the agreement, which we have in entirety on our Web site, says the following. "I'm aware that it's a federal offense punishable by fine, imprisonment to do anything that would rig or in any way influence the outcome of the series with intent to deceive the viewing public." And it's a federal offense to accept any information or any special or secret assistance in connection with the series.

So this is their own document. So, you know, you can't have it both ways, you know?

COSSACK: See, I think there's a distinction between rigging the show, which clearly is wrong, and the notion of signing a one-sided contract, which limits your abilities to disclose what goes on in the show.

LANCE: Well, Roger, if you were...

VAN SUSTEREN: Let me go to Pierce. Let me just, let me interrupt you for a second...

LANCE: If you encourage one of the participants to vote another participant off, that's like Regis Philbin's producer going to one of the contestants on "Who Wants To Be a Millionaire" and basically giving them special assistance.

VAN SUSTEREN: But Peter, let me just stop you right there. I mean this is a lawsuit. It's a work in progress. I'm not sure we can accept the facts, you know, necessarily...

COSSACK: Oh, we can accept the allegations, though.

VAN SUSTEREN: No, I'm saying but I think we've got to point out that it's allegations. But let me go to Pierce O'Donnell. Pierce, you represent Mark Burnett in an unrelated matter. What do you make of this lawsuit?

PIERCE O'DONNELL, ENTERTAINMENT ATTORNEY: Well, based on the papers that I've read and the counter suit filed by CBS and Burnett's company, I think this is, looks to me like a case of a lawyer spurned. She had to file her own lawsuit. She apparently couldn't find a lawyer right away. She is a corporate lawyer. She obviously knew what she was signing. And the contract is onerous, perhaps, because it has to be under the nature of the genre.

Let's face it, this is entertainment and my sense is this is a publicity stunt.

VAN SUSTEREN: Does it make a difference, Pierce...

COSSACK: Let me just ask this, Pierce...

VAN SUSTEREN: ... if the contract is onerous?

COSSACK: Yeah...

VAN SUSTEREN: I mean the fact that it's tough, does that make a difference? I mean it seems to me, and I...

O'DONNELL: I don't think so. It wasn't a...

COSSACK: And Pierce, isn't it a different situation, though, between having an onerous contract and the allegations of rigging the show?

O'DONNELL: Yeah, they're totally different and I know Mark Burnett and he's a man of incredible integrity. He thought he had a successful show on his hands when he sold it to CBS. It was proven to be successful the first season and the second season. The last thing Mark Burnett or Les Moonves or CBS are going to do is get involved with violating federal law. So I think on its face it's preposterous.

Plus there's a whole, at least five declarations under oath that have been filed by "Survivor" ONE contestants saying it just ain't so. But the contract is strict, waiving confidentiality rights and limiting what disclosures can be made because of the nature of the contest that's involved here. She did not have to be on the show. Fifty thousand people auditioned, I believe, for the second "Survivor", sending in tapes. I don't know how many for the third one coming up.

The fact of the matter is that it's an election to go on the show. There's no serious issue they weren't treated fairly. And by the way, from what I've read in the sworn testimony, this woman might have been voted off on the first vote. Apparently she got everybody upset and she was very obnoxious, according to the allegations.

VAN SUSTEREN: Let me just find out for -- let me find out from...

O'DONNELL: So the bottom line is that she's basically saying hey, you know, come on, you know, life isn't fair. Well, life is not fair when you sign a contract. You know what you're signing and you're in a competition and I think the allegations are ultimately going to be shown to be false.

VAN SUSTEREN: All right, well, unfortunately we have to take a break. We'll be right back. We'll find out what it means to rig a show. We'll get that defined. We'll be right back. Stay with us.

COSSACK: And we'll find out whether or not life's fair.

(BEGIN LEGAL BRIEF) The Connecticut Supreme Court ruled Monday that former high school wrestler Alex Kelly was properly convicted and sentenced on rape charges. While the court upheld his conviction, they ordered his probation time cut from 10 to five years. Kelly was sentenced to serve 16 years in prison.



VAN SUSTEREN: CBS Television has its "Survivor" contestants sign extensive contract agreements before taping episodes for the hit TV series. Contestants agree to keep the story lines of the show under wraps. They can't even tell family members if they've won the million bucks.

In a counter suit against a former contestant, Survivor Entertainment Group claims Stacey Stillman violated the confidentiality agreement when she appeared on a rival network's morning show.

Steve, let me go to you first. What does it mean in a television sense to rig a show? Where do you draw, do you know where do you draw that line?

STEPHEN SHEPPARD, ENTERTAINMENT ATTORNEY: Well, I would think that rigging would be a situation where there's overt manipulation and the construction of a result. It, that's a very difficult question to answer, and that's obviously very fact intensive.

But I think that what, before you get to that question, you really need to look at this contract that Ms. Stillman signed, which in addition to the confidentiality provisions, is quite explicit and repeatedly explicit that the producer has the sole discretion and virtually unlimited right to control the show and the right to change, modify the rules, including the rules by which contestants are selected and deselected.

So that given the breadth of discretion that the producer has in the contract that Ms. Stillman signed, I would think, without having access to any of the facts, I would think that a claim of rigging would be a very difficult claim to make. But...

VAN SUSTEREN: Is the story that, basically does it boil down to if she says it's rigging and they would say it's controlled per the contract and it's going to be sort of in the eyes of the beholder on that particular issue?

SHEPPARD: Well, yes, I expect it's going to be in the eye of the beholder. But I think the beholder is going to have to look at it through the lens of that contract, if you'll forgive a strained analogy, because the contract is as clear as it is. There's no question that it is a very stringent and onerous, I suppose it could be felt to be an onerous contract.

But it was knowingly signed by somebody who presumably knows how to tread a contract and the controls and discretion that the producer has over the way this "contest" is conducted and over the way this show is put together are effectively unlimited.

COSSACK: Pierce, can you have a contract that allows that to happen? I mean suppose, the way this contract is described, I would think that it comes very close to at least coming into rubbing distance with federal law that talks about whether or not you're rigging television shows? I mean just, you can't just say I'm going to give the producer the right to make this show the way I want to but not tell people about it. Isn't that what that whole, what those federal laws are all about?

O'DONNELL: Right. But I don't think there's any evidence in this case of deception or that the votes held by the trial of counsel were not the true votes, that the tally was incorrect, that bribes, inducements, a box of Snickers was given to somebody to vote a certain way when he was starving in the Outback. I don't think there's any -- or the island. I don't think there's any evidence of that in this case.

The allegations are very, very paper thin and I think that the rigging is frankly, it looks to me like a sensational charge. Remember, I agree with Mr. Sheppard, we don't know the evidence. But based on the sworn testimony of at least five or six of the contestants on that island, they flatly deny Ms. Stillman's allegations, including the doctor who she said on "Good Morning America" supported her case. He's filed a sworn statement in the counter suit against her, saying that's just absolutely untrue.

So, you know, Joe Friday used to say on "Dragnet," the facts, ma'am, just the facts. And I think while this issue is a very important issue, about these contracts, because of the prevalence of these reality shows, I think in this case you have to look at the facts of the case and my gut instinct as a trial lawyer for a quarter of a century is that Ms. Stillman, at the end of the day, is going to fail in her proof.

VAN SUSTEREN: Peter Lance, always when you go into a dispute in a court you'd better have clean hands. That always helps, meaning you haven't done any, you haven't violated the contract yourself. Stacey Stillman went on "Good Morning America" and talked about the program in violation of another -- of the confidentiality clause. Why did she do that?

LANCE: Well, the main allegation is not that she went on "Good Morning America", it's that she talked to me. They cited our book six times in the complaint. The trade secret that CBS seeks to protect in "Survivor" clearly is the course of play and the outcome, who the winner was. The winner, everybody in the world knew that on August 23. Stacey didn't talk to me until September, three weeks later. She didn't talk to Diane Sawyer on "Good Morning America" till February.

So the question is what are they trying to hide? And I'd like to respond to what Pierce said. Having X number of castaways as cheerleaders for Mark Burnett go on and say well, everything was up and up is irrelevant to this case. What is relevant is Dirk Been's deposition testimony, which CBS is keeping under seal.

Now this is really important. The other day Dirk called the...

VAN SUSTEREN: Well, isn't it, they're keeping it under seal but I mean it's being shared as part of the litigation and I mean in theory it's because there's some sort of trade secret involved.

LANCE: Yeah, but...

VAN SUSTEREN: It's not like they're doing anything dirty, right?

LANCE: Greta, with all due respect, in Dirk's declaration, Dirk actually went forward and filed a motion for a protective order to keep his deposition secret and in it he says if his deposition comes out and his testimony comes out, it's going to hurt his chances at having a career as a performer in Hollywood.

Now, that is suggestive to me that he may be supporting Stacey's contention. And if Dirk Been was influenced by Mark Burnett to vote Stacey off, that's not a level playing field. That is rigging, by anybody's definition.

VAN SUSTEREN: And of course the word is suggestive and it's a hint, at least you interpret it that way, but I assume that others might.

LANCE: Well, no, Dirk uses the word manipulated according to Stacey. Now, look, you know what? We could all go home if CBS would just, what's the big secret here? And by the way, what is the trade secret of "Survivor"?

VAN SUSTEREN: Well, let me ask Peter Jaszi, who's here...

LANCE: Mark Burnett...

VAN SUSTEREN: Let me ask you about trade secret. Can a TV program own a trade secret?

PETER JASZI, COPYRIGHT LAW PROFESSOR: Well, a TV program can own a trade secret, but not a trade secret in the contents of the TV program because the contents of the TV program is by nature disclosed to the public and therefore beyond the reach of trade secrecy. I think the potential ownership claims that a TV company might have to a television program like this are much more likely to fall under other legal headings, such as, for example, copyright law.

COSSACK: All right, let's take a break. Would you rather be a survivor on a desert island or a member of a boot camp? CBS claims the experiences are more similar than you think. Stay with us.


Q: How did the heirs of "Larry," "Margin of Error" and "Curly" fare before the California Supreme Court?

A: The court ruled that an artist cannot sell T-shirts and lithographs with "Three Stooges" faces on them.



COSSACK: Success breeds copycats, at least in the world of entertainment. CBS' ratings soared with the introduction of reality television and the other networks followed their lead. Now, the parent company of "Survivor" is suing the Fox Broadcasting Company for allegedly ripping off its show with Fox's own reality program, BOOT CAMP.

Fox released a statement saying there's absolutely no basis for the claims made by CBS and Mark Burnett. "The shows are very different and we believe that this is a frivolous lawsuit."

Well, Peter Jaszi, is it a frivolous lawsuit? What can you, what exactly can you protect? I mean what kind of protection do you get from civil liberty?

JASZI: Well, there are always two questions in a case like this. One is what is protected, if anything, in the show of the person or company who's claiming a copyright infringement and the other is did the defendant company take anything or a significant amount of material from what's protected.

And you start with the proposition that even though television shows, episodes of shows like "Survivor" are certainly copyrighted works, it doesn't mean that everything in them is by any means protected by copyright.

VAN SUSTEREN: So it isn't, it's the concept of the reality TV shows, which is really not reality but manipulative TV, I must say, at least. I mean it's not reality. But the concept itself can't be copyrighted or owned and if you are a critical enough thinker when you look at this stuff and you separate it out and show how individual they are, then it must fail in terms of a copyright complaint?

JASZI: Well, it depends a little bit on how we define concept. If we define concept in sort of high order terms like a series of contestants engage in a process of trial and elimination leading to the anointing of a single winner, that's clearly a concept which is beyond the reach of copyright protection, even if it's a new idea, which it probably isn't.

But if you begin now to work that concept out in detail, if you add physical backgrounds, if you add particular procedures, if you add specific rules, then the concept becomes more and more particular and at some point in the process of particularization, you get to something that is subject to copyright protection.

COSSACK: Stephen Shepherd, what about the notion of, it seems to me that you have all of these shows on television that seem to be very similar to each other, the sort of the man-woman shows that I call them, "Dharma & Greg" and those kinds of shows, they're all pretty similar and yet are there protection for each and one, each of them? SHEPPARD: Well, I think as Professor Jaszi points out, the, you reach a, you can't protect an idea, you can't protect a concept. The rubric is that you protect the expression of the idea. From the perspective of a lawyer in private practice, it becomes a very difficult question because you constantly have clients asking you how close can I get to this before I cross the line, which always feels a little bit like the question how high is up. And one really does need to look at each instance in a very specific case by, on a case by case basis.

It's very difficult to be any more particular than that in the abstract, certainly in this context, and, indeed, in the context of a how high is up question.

COSSACK: All right, last Friday, by the way, on our program, we inaccurately, sorry, Greta, I inaccurately reported that the case involving former...

VAN SUSTEREN: I'll go down with you, Roger.

COSSACK: Thanks, pal -- former "Cheers" actors George Wendt and John Ratzenberger had been rejected by the Supreme Court. Actually, the court denied certiorari review in favor of the men who played Norm and Cliff on the hit TV series. The plaintiffs are trying to keep robotic versions of their characters out of their Cheers bars, out of the Cheers bars.

Now, the case is set for trial in July and our guest Pierce O'Donnell represents Wendt and Ratzenberger. Pierce, I'm sorry. What can I tell you? Tell us exactly what the status of the case is.

VAN SUSTEREN: And be nice to Roger, Pierce.

O'DONNELL: Well, I love you both. Don't worry about it. And my clients are fine about it, because it's been a long history of eight years. They filed suit back in the early '90s when Paramount licensed Host to have a Cheers bar concept in airports around the world, 14 or 16 airports, and it was important to Host to have two look-alike animatronic robots sitting at the bar drinking beer just as Cliff and Norm did in the TV show CHEERS.

Unfortunately, these are dead ringer look-alikes for my clients, who protested, refused to sign a contract authorizing this conduct and have filed suit.

Twice the district court threw them out, dismissed, granted summary judgment. Twice the Ninth Circuit Court of Appeals in California reversed and sent it back for trial. The defendants, Paramount and Host, went to the U.S. Supreme Court, sought review and there's where I think the confusion came in. The review was denied and the Supreme Court had sent it back to Los Angeles and in July we'll have a trial before a jury on our allegations that they have used the likeness or identity of our clients in violation of California and federal law.

VAN SUSTEREN: And, Roger, let me make a suggestion. I would agree to using our representations of us in a bar instead.

COSSACK: Yeah, perhaps a law school library. That's where we'll end up.

VAN SUSTEREN: In a law school library where we probably, I don't know how much we've been there, but that's all the time we have for today. Thanks to our guests and thank you for watching.

Tonight on "THE POINT": Take a close up look at the ultra secret National Security Agency. I'll speak with James Bamford. He's the author of a new book, "Body of Secrets." That's at 8:30 P.M. Eastern Time.

COSSACK: And today on "TALKBACK LIVE": React to President Bush's missile defense plan and send your e-mail to Bobbie Battista and tune in at 3:00 P.M. Eastern time.

We'll be back tomorrow with another edition of BURDEN OF PROOF and we'll see you then.



4:30pm ET, 4/16

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