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.
