The first thing I did this morning when I came into the office was prepare a treatment for a new reality show to be pitched to TruTv on behalf of a client. A treatment is basically a short description of the basic premise of the show with some idea of what a few of the episodes would contain so that the network can see if it is interested. Of course, the first question from my clients was “How do I know they won’t steal it?” The client was incredulous when I told them that it may be very hard to stop them from taking the basic concepts in the show for a number of reasons as you cannot copyright or protect “an idea,” all you can do is protect your specific expression of the idea. I had already given them some advice on how to give themselves some protection over some of the elements. The proposed title of the show, for example, is a phrase that they use in their business so last year I advised them to register it as a trademark . I had them register their written description of the show with the Writers Guild of America, so we could attach a WGA number to the treatment. Both of these steps send a signal that you are at least serious about protecting your intellectual property and have some idea of what you are doing. Finally, I advised them to think up as many original concepts to the show other than the basic premise and those ideas can at least be protected.
Having done that, I sent it off to the network this morning. Imagine my surprise therefore when upon reading the New York Law Journal this morning, I found that Federal Judge Joanna Seybert of the Eastern District of NY, published a decision today right on topic. The decision is likely to send chills down the spine of all those folks out there who think they have the idea for “the next big thing” in reality programming. The decision shows that what you may think is protectable is really not.
In Castorina v. Spike Cable Networks, Inc. Judge Seybert was dealing with a claim by two men alleging they had submitted a treatment for a “sports reality” show to Spike and that after Spike rejected it, Spike ended up producing the popular “Pros vs. Joes” (“PvJ”) TV show. Here is part of the treatment for the proposed show called “Two Left Feet”:
a. The overall premise of the show—i.e., “To show that some men missed their calling as athletes and some men should stay home, content to yell at the TV during games”;
b. A process for the selection of athletic amateurs which would consist of tryouts: the tryouts themselves would focus on the athletic performances of fit, active men of varying ability, and final selections would be made based upon the particular temperaments, appearance, ability, etc., of the participants;
c. An outline of the general framework of typical episodes for the show, detailing images, camera shots, etc., meant to convey the nervousness and intensity of the men waiting for their chance to prove their skill against professional athletes, as well as the inclusion of short, interposed bios of the men selected and why were picked;
d. A meticulous description of the personalities and backgrounds of two proposed hosts/judges/announcers (each being the polar opposite of the other in various respects) for the show, as well as a summary of the contributions they would make towards the show;
e. Plans for and descriptions of future episodes, which would include specific challenges for the competitors in basketball, hockey, tennis, soccer, boxing and football;
f. The idea that cash prizes be given to those amateur athletes who win competitions.
With the exception of two opposite announcers, all of those elements exist in PvJ. Both shows’ basic premise was finding regular guys who always thought they could have been pro athletes to compete against actual pro athletes. The outline of the the proposed show almost describes word for word the format of PvJ. So imagine these two guys who think they have hit it big – they have the next golden idea and submit it to Spike. It gets rejected. About 18 months later, the first season of PvJ airs and they scream from their wood-paneled basement man cave: “We wuz robbed!”
But their case did not even survive the first stage of litigation. Spike moved to dismiss the complaint before it even put in an answer and Judge Seybert granted the motion saying there was no point to litigation, the issue was clear:
The Court finds Plaintiffs’ “Two Left Feet” treatment consists largely of stock concepts and “scènes à faire,” such as fielding a baseball hit by a professional baseball player, and images depicting “panic, tension, relief, or failure.” . . .Rather, the treatment’s copyright protectability, if any, must—as Plaintiffs concede—flow from “the unique way the authors put together” various “stock ideas.” But, contrary to Plaintiffs’ further argument, this does not mean that they own an enforceable copyright in the “basic concept” of a sports reality show, even though the “value of an unscripted program may lie almost entirely” in that idea. For “[i]t is a fundamental principle of our copyright doctrine that ideas, concepts, and processes are not protected from copying.”
Unfortunately for Plaintiffs, the “Two Left Feet” treatment contains limited “original” “select[ion], coordinat[ion], and arrange[ment]” of unprotectable elements. Indeed, Plaintiffs concede as such. But the treatment’s vagueness, however intentional, also undercuts its protectability, because—the less “specifics” and “detail” it contained, the less it uniquely and imaginatively “selected, coordinated and arranged” the stock elements contained within.
Many people will say that Spike got away with something here because its too much of a coincidence that they developed a show with an identical premise to plaintiffs’ idea within two quick years. But they would be wrong – because what Judge Seybert is saying is that Spike was allowed to copy the unoriginal basic premise of the show and come up with its own version. Spike did not include the aspects of the treatment that Judge Seybert said would have been protectable: for example, the treatment had one announcer being a former federal agent and the other being a nerdy biochemist who would argue with each other in a “good vs. evil” or “nature v. science” fashion. Spike also did not take the show’s suggestion of inserting at least one goofball into every episode. So what the law requires, the judge said, was to decide if the protectable elements match each other, since they did not, there was no case.
Judge Seybert pointed out that the Second Circuit, the federal appellate court, has never had to decide a copyright issue over a reality TV show, but I expect that it would follow Judge Seybert’s analysis here as similar issues have arisen with other forms of media, like books and scripted TV shows.
So what’s a hopeful reality TV producer to do? The first thing is lower your expectations about your idea and what is protectable. If you are relying on “reality” to provide you a premise you have to realize that this does not amount to an expression of creativity, which is what copyright is designed to protect. Secondly, develop your idea with as much original formatting concepts as you can come up with and those will be protectable. Here, the creative additional premises for the show were frankly not that good, but had Spike stolen those, the court said that would have been a different story. Finally, realize that you run a tremendous risk when you submit ideas to networks and it may be better to try and develop funding to produce an episode or two yourself and pitch it to a production company. A cable network may be more interested in a show that they will just have to buy rather than produce themselves.
But regardless of the path you take, keep in mind that you are dealing with professionals. Networks, media companies, production companies are all very savvy in this area and have a cadre of in-house legal staff devoted to these issues and they will take whatever the law allows given the opportunity. Get good advice beforehand, plan accordingly or you may find yourself in a legal version of “Pros vs. Joes”.