Copyright law often struggles to catch up with new developments in media and technology. While the modern era of reality television took flight with the debut of “The Real World” more than two decades ago, case law regarding copyright infringement of formats for reality television is comparatively underdeveloped.
Recent decisions have presented a dilemma: whether courts should apply to these situations the so-called extrinsic test the Ninth Circuit uses to assess infringement of literary and dramatic works. And, if so, how? The answers have important ramifications for lawyers and their clients seeking copyright protection for reality formats and other unscripted content. Applying a test designed for scripted works to reality formats, as some rulings have done, calls into question whether courts in the Ninth Circuit are prepared to afford copyright protection to reality television formats.
In the Central District of California’s Dillon v. NBCUniversal Media LLC, No. 12-09728 (2013), for example, the plaintiff was the author of a copyrighted treatment, or written proposal, for a reality show titled “Celebrity SEALS,” where celebrities would engage in competitions modeled on Navy SEAL exercises, with retired Navy SEALs as coaches. The defendants, some of whom had access to this treatment, later produced a reality program titled “Stars Earn Stripes,” which featured celebrities engaged in physical competitions with coaches culled from the military and law enforcement. While the two concepts appear to have some similarities, are they sufficient to establish infringement?
Under current case law, a claim for copyright infringement requires proof of two elements: that the plaintiff owns a copyright, and that the defendant copied original elements of the plaintiff’s copyrighted work. To prove copying, a plaintiff must prove access and substantial similarity between the works at issue.
For literary and dramatic works, the Ninth Circuit has formulated an extrinsic test—in cases such as Funky Films Inc. v. Time Warner Entertainment Company L.P., 462 F.3d 1072 (2006)—by which courts compare the “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” of the two works at issue. But while reality shows are dramatic works, the Ninth Circuit’s extrinsic test for literary and dramatic works was originally designed to compare fictional works.
Applying this test, the Dillon court denied in part defendants’ motion to dismiss, finding that the plaintiff had adequately alleged that the formats at issue had similar themes and moods, plots, sequences of events and characters.
Despite the Dillon court’s application, we would argue that the traditional extrinsic test does not always fit well with reality television. For example, the characters in reality shows are not typically works of fiction—they are real people. In Dillon, the court considered as “characters” plaintiff’s suggestion in his treatment that wrestlers Steve Austin and Chris Jericho could be cast members on “Celebrity SEALS”; wrestler Eve Torres was ultimately cast in “Stars Earn Stripes.” But in our view the concept of casting a wrestler in a reality show appears to be an “idea,” which is not protectable under the Copyright Act.
Indeed, at least one court has concluded that casting suggestions are not protectable, and should be “filtered out” of the extrinsic test: the Central District of California, in Bethea v. Burnett, No. 04-7690, a 2005 decision concerning claims that “The Apprentice” knocked off a concept titled “C.E.O.” This makes sense: just as a plaintiff could not obtain a copyright for the idea of having Russell Crowe play Superman’s father, the suggestion of casting a professional wrestler in a reality show is arguably not protectable. Thus, applying the Ninth Circuit’s current extrinsic test in a reality context, a defendant could contend that most reality formats by definition do not have any protectable characters, and that the absence of protectable characters disfavors a finding of infringement.
Similarly, the “dialogue” element may also militate against a finding of infringement. In Dillon, both parties “agree[d] that because the works are both unscripted reality television programs, dialogue is not relevant to the Court’s analysis.” However, a defendant could go a step further and contend there are no similarities in dialogue.
The “theme” and “mood” elements may also weigh against a finding of infringement in reality format cases. For example, reality shows routinely pit contestants against one another in heated competitions—think of “The Apprentice,” “Survivor” and “The Amazing Race.” Therefore, the theme and mood of many reality shows, including most competition shows and game shows, are arguably stock elements of the reality genre and may not be protectable. In Dillon, the court found that the “theme and mood of [both works] is one of appreciation and respect for military personnel.” But shows ranging from “The Price Is Right” to “Extreme Makeover: Home Edition” have long been predicated, at least in part, on showing respect and appreciation for military personnel.
Indeed, Ninth Circuit precedent appears to disfavor copyright protection of reality formats.
In Rice v. Fox Broadcasting Co., 330 F.3d 1170 (2003), the Ninth Circuit affirmed a grant of summary judgment holding that a series of specials aired on Fox did not infringe a video titled “The Mystery Magician.” Both the Fox specials and “The Mystery Magician” were scripted audiovisual works featuring masked magicians revealing the secrets behind well-known magic tricks. After rejecting the plaintiff’s claim that his masked magician character should be afforded copyright protection, the Ninth Circuit concluded that “there is simply no copyright protection afforded to the idea of revealing magic tricks,” and found that any alleged similarities in the tone, dialogue, setting or sequence of events of the two works were attributable solely to unprotectable ideas or scenes a faire. Perhaps most importantly for reality formats, the Ninth Circuit reiterated its prior holding that “general plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind. Nor does copyright law protect ‘scenes a faire,’ or scenes that flow naturally from unprotectable basic plot premises.”
Several district courts have also granted motions to dismiss or motions for summary judgment in favor of defendants where a plaintiff has alleged the infringement of a reality format. In each of those decisions, the court cited Rice and, in decisions like Bethea, attributed any similarities between the works at issue to the “unprotectable ‘staples’ of the reality television genre.”
In short, Dillon notwithstanding, unless the courts articulate a more fitting infringement test, owners of reality television formats may face an uphill battle in establishing copyright infringement in the Ninth Circuit.
Ultimately, plaintiffs should consider whether the similarities between their works and allegedly infringing works are composed of protected expression, or of unprotected ideas or stock elements of the genre. Reality producers should identify the key expressive components that distinguish their format in the marketplace—for example, a particular set piece that recurs in every episode, such as the weigh-in/elimination sequence in “The Biggest Loser”—and should plan to protect those components rather than the underlying concept.
In addition to any claims in copyright, owners of valuable formats should look to other areas of law to protect their intellectual property. For example, a show’s title and design elements may be protectable as trademarks or trade dress under the Lanham Act. And breach-of-contract claims are commonly asserted in idea submission cases, where the defendant improperly uses the plaintiff’s idea for a particular format without compensating the plaintiff. Finally, trade secret claims may be appropriate where the alleged infringer was a former employee or otherwise had access to a company’s confidential format ideas or treatments, and improperly misappropriates that confidential information.
David Martinez is a partner at Robins, Kaplan, Miller & Ciresi, where he handles intellectual property, business and antitrust litigation. Dan Stone is an associate at the firm, where he handles entertainment and media, intellectual property and business litigation. David can be reached at email@example.com, and Dan can be reached at firstname.lastname@example.org.
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