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Did Spike TV's reality show "Pros v. Joes"
infringe the copyright of "Two Left Feet?" The Eastern District of
New York answered "No," and on Tuesday, the creators of "Two Left Feet"
filed their appeal in the Second Circuit (No. 11-1662).
Plaintiffs Christopher Castorina and Steven Morse pitched
a treatment for a sports-themed reality show entitled "Two Left
Feet," which they successfully copyrighted. Thereafter, defendant Spike
Cable Networks premiered a sports-themed reality show called "Pros v.
Joes." Plaintiffs alleged that "Pros v. Joes" infringed upon
"Two Left Feet."
In Morse v. Spike Cable Networks, Inc.,
2011 U.S. Dist. LEXIS 31518 (E.D.N.Y. Mar. 24, 2011) [enhanced version available to lexis.com subscribers], the court noted that the Second Circuit had not yet articulated
how similar reality television programs had to be for a "substantial
similarity" to exist. However, the court found the following framework applicable:
The Second Circuit sets forth that "[t]he
standard test for substantial similarity between two items is whether an
'ordinary observer, unless he set out to detect the disparities, would be
disposed to overlook them, and regard [the] aesthetic appeal as the same."
... When works have "both protectable and unprotectable elements,"
the Court "must attempt to extract the unprotectable elements from [its]
consideration and ask whether the protectable elements, standing alone, are
said, the Court must focus on "the contested design's total concept and
overall feel" in comparison to "the allegedly infringed work." ...
Thus, the "inquiry necessarily focuses on whether the alleged infringer
has misappropriated the original way in which the author has selected,
coordinated, and arranged the elements of his or her work." To that end,
there must be substantial similarity in the "expression of ideas,"
not just in "the ideas themselves."
Accordingly, although stock concepts and "scènes
à faire" are "unprotectable" in and of themselves, their
"select[ion], coordinat[ion], and arrange[ment]," can be protectable,
to the extent that it reflects a particular "expression of ideas."
Under the facts, the
treatment's protectability, if any, had to flow from the unique way the authors
put together the various "stock ideas." "Pros vs. Joes" infringed only if it copied
the original way in which the authors selected, coordinated, and arranged the various elements to such an extent that "Pros
vs. Joes'" expression of ideas and total concept and overall feel was
substantially similar to "Two Left Feet."
Initially, the court held that the treatment's choices in selecting, coordinating and arranging stock elements were largely inherently functional to the idea of
a sports reality show, rather than "original" creative expressions of
any particular idea. These stock elements included:
As the court stated:
Indeed, it is difficult to fathom a sports reality
program designed for the American television market that, instead of featuring
these sports, would instead pit amateur Americans against professional camel
jockeys, cricketers, and haggis hurlers. Similarly, there is nothing
protectable in the "Two Left Feet" treatment's decision to express
scenes of "panic, tension, relief or failure," using the functional
device of "quick shots," instead of, presumably, footage depicting
the contestants leisurely chewing tobacco, lounging on the bench, or scratching
That being said, the
"Two Left Feet" treatment did, to a small extent, select, coordinate
and arrange some stock elements in creative, non-purely functional ways. These
Comparing the aforementioned elements to "Pros v. Joes,"
the court underscored that:
court held that "Two Left Feet's" protectable expressions did not
remotely resemble the expressions found in "Pros vs. Joes." As a
consequence, no objective observer could conclude that "Two Left
Feet" and "Pros vs. Joes" shared a substantially similar total
concept and overall feel.
For more information on these issues, read:
1-2 Nimmer on Copyright § 2.09[G] Motion Pictures and Other
Audiovisual Works-Television Formats (If you do not have a
lexis.com ID, you can purchase Nimmer on Copyright at the LexisNexis Bookstore)
The plot of a television or radio
show, no less than of a novel, is subject to copyright. The further question,
however, arises whether the format of a television or radio show can be subject
protection. Little case law addresses this issue. ...
Rodriguez v. Heidi Klum Co., LLC, 2008 U.S. Dist. LEXIS 80805 (S.D.N.Y. Sept. 30, 2008) [enhanced version]
This action arose from the
broadcast of the fashion-themed reality television program "Project Runway."
Plaintiffs contended that the program infringed on a copyrighted treatment they
created for a show called "American Runway."
Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007) [enhanced version]
Distributor of syndicated talk
shows was entitled to Fed. R. Civ. P. 12(b)(6) dismissal of copyright
infringement claim; generic elements of talk/cooking show were not protectable,
and distributor's "Rachael Ray" was not substantially similar to any
protectable elements of plaintiffs' work or to presentation order of
Bethea v. Burnett, 2005 U.S. Dist. LEXIS 46944 (C.D. Cal. June 28, 2005) [enhanced version]
a copyright holder claimed that the plot of a reality television program that
he had pitched to a television producer's attorney was similar to a show later
produced, the alleged similarity was nothing more than a string of generic
ideas which was not protected by copyright. His 17 U.S.C.S. § 501 copyright
infringement claim was dismissed.
Barris/Fraser Enterprises v. Goodson-Todman
1988 U.S. Dist. LEXIS 146 (S.D.N.Y. Jan. 4, 1988) [enhanced version]
In producers' declaratory action
against another producer regarding alleged copyright infringement of a game
show, the parties' summary judgment motions were denied where it could not be
said that there was no similarity of protectible material.
Daniel Fox, Harsh
Realities: Substantial Similarity in the Reality Television Context, 13 UCLA Ent. L. Rev. 223 (Spring 2006)
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