Can Reality Be Copyrighted?

It is important to understand that there is no such thing as an original idea; there is only such a thing as an original expression.  In fact, on the past Hollywood infringement of copyright cases, Hollywood studios and pictures have won all 48.  Basicallly the courts state that, common ideas cannot be protected.

The concept is easy to understand with the television show The Biggest Loser.  How many people do you think had the creative idea to make a reality television show out of a weight loss competition?

In this case more than once; NBC has had to defend their copyright in court more than once.  It should be noted that almost every writer who has had this idea about a reality weight loss competition has remorseful feelings that NBC stole their show.  However, the courts think differently. Copyright infringement cases weigh very heavily on three elements.

  • Is there an official Library of Congress Registration?
  • Was there access to the material claiming to be infringed upon?
  • With the independent creation and the creative expression found within, is there substantial similarity within the element of that creative expression?

In Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (CD Cal. 2008) Judge Ginsberg said that in reality TV once you have those touchstones it becomes pretty difficult for reality shows to become substantially similar.

When it comes to access, the court said that reasonable assumption of access was not enough and that a “particular chain of events” especially with screenplays that take so long to produce must occur.  The court will look for a “close” relationship’ A) a supervisor with responsibility over the material, b) a person who contributed creative ideas or 3) be part of the same work unit as the alleged copier.  However, the courts do not tend to weight heavily upon this and many assume that access was entirely possible and thus move to the next element.

When it comes to substantial similarity, because even with access the court must still prove substantial similarity.  The precedent cases insist that the courts perform ‘extrinsic analysis” of the work and articulate similarities between the plot, the theme, the characters, the pace and sequence of events and the dialogue.  This’ means that the similarity should be examined by the protectable elements and the unprotectable elements.  From the example above, a competitive weight loss show is not protectable.

For screenwriting and literary works this translates to copyright law generally does not protect plot premises or “scenes a faire” (generic expressions that flow from that premises, the arrangement of the elements is a protectable scope of copyright law.  What might not be protectable is that if the unprotectable theme of “weight loss” has a natural generic flow to exercise and diets the extrinsic test may see this as unprotectable.   The particular sequence by which an author strings together unprotectable sequences is creative expression and protectable.

Judge Alvin Hellerstein, for the Southern District of New York threw out the copyright infringement case Latimore v. NBC Universal, Inc. et al., 07 Civ. 9338 (AKH) (SDNY Feb. 22, 2011) over the television show The Biggest Loser.

The court analyzed a 4-page treatment called “Phat Farm/Fat Farm” and ruled for summary judgment against plaintiff Latimore finding no substantial similarity between the protectable elements.  Basically stating that w weight loss show is going to create generic unprotectable elements stemming from its theme and these are not protectable elements.

Bottom Line – 1) If you are pitching to a network get all of you proper submission and non disclosures signed and 2) If you have any thoughts of ripping off a network….don’t bother!

For more about Copyrights:

About Copyrights

Copyright Infringement – Access

Copyright Transfer