Intellectual Property

Reality Show Copyright Case Goes to Second Circuit: District Court Finds Spike TV’s "Pros v. Joes" Non-Infringing

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 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 substantially similar."

That being 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."

(citations omitted)

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:

  • the portrayal of professional athletes vs. amateur athletes in competition;
  • short bios of the players and why they were selected;
  • footage capturing the "sudden and intense movement of professional sports;" and
  • the treatment's selection of popular sports, such as baseball, football, and basketball.

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 themselves.

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 elements included:

  • supplementing real amateur competitors with a few "goofballs" for "comic relief of course," and "a few ringers to make the other guys envious and competitive;"
  • describing one host as an "ex law enforcement officer, federal agent, with a masters degree in Social Work," who would use this background to "manipulate" the other host, a "biochemist with a cool analytical nature, yet a vicious temper," and who would focus on analyzing competitors using various scientific parameters, such as "bodyfat" and other statistics;
  • "test[ing]" the competitors "for well-roundedness by forcing them to sing ala American Idol;" and
  • the hosts judging the contestants using their own subjective beliefs and ability to persuade the other host, with an "independent panel of sports experts" replacing them for the final episode.

Comparing the aforementioned elements to "Pros v. Joes," the court underscored that:

  • plaintiffs did not allege that "Pros vs. Joes" contained any of their artistic, potentially original elements in selection, coordination, or arrangement;
  • "Pros vs. Joes" did not utilize plaintiffs' creative choices, including the host format;
  • "Pros vs. Joes" included segments that depicted basic athletic match-ups but augmented with a "twist" on popular sports; and
  • "Pros vs. Joes" used an entirely different format than "Two Left Feet's" elimination system.

The 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 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 non-protectable elements.

Bethea v. Burnett, 2005 U.S. Dist. LEXIS 46944 (C.D. Cal. June 28, 2005) [enhanced version]

While 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 Enterprises, Ltd., 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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