Your “Reality” Must Be Original To Win Copyright Protection

By Brad Ellis, Partner, Sidley Austin LLP, and Darci Bailey Vice President & Associate General Counsel, Legal and Business Affairs, A&E Television Networks, LLC.

Since the debut of Candid Camera in the late 1940s, unscripted television of varying genres (from game shows to documentaries) has been a staple of American television. Not until the worldwide success of shows such as Survivor, however, did the genre, and in particular the staged competition variety of unscripted “reality” television, become a dominant source of programming in the US market. Reality television often takes on a familiar pattern – as the season progresses contestants are eliminated by audience and “expert” votes leaving one person or couple to win the grand prize. The myriad ways in which to package this formula has no limits, and in light of the success of such shows, a vast number of people are creating and pitching what they believe to be both original and the next Survivor. And that leads to lawsuits.

Would-be producers see a new program on television and believe they are watching their own creation come to life – except, it has someone else’s name attached. A copyright infringement case ensues. Despite the frequency of such lawsuits, the number of reported decisions specifically addressing infringement in the world of unscripted programming remains relatively sparse. A recent decision from the United States District Court, Southern District of New York, adds to the case law that can be called upon when a producer or network finds itself the target of a copyright infringement lawsuit.

Copyright Fundamentals

A fundamental tenet of copyright law is that it does not protect ideas, but rather, only the original expression of those ideas. Thus, in a copyright infringement lawsuit, the plaintiff must prove ownership of a valid copyright, and that the defendant copied protectable elements of the plaintiff’s work such that it can be said that the defendant’s work is “substantially similar” to it. To determine substantial similarity, a prime consideration for courts – and one that can be outcome determinative – is whether the total concept and feel of the works is of such similarity that an ordinary observer would overlook their differences and “regard the aesthetic appeal as the same.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2002). When applying this test, courts are to extract elements that cannot be protected and ask whether the protectable elements alone are substantially similar. Id.   Stock concepts and scenes a faire, those elements of a work that flow necessarily from the underlying idea, are not themselves protectable. However, the original selection, coordination and arrangement of them can be protected. Castorina v. Spike Cable Networks, Inc., 784 F. Supp. 2d 107 (E.D.N.Y. 2011).

Williams v. A&E Television Networks (“AETN”) et al

These principles were recently applied in a case in which the plaintiff alleged that the AETN docu-series, Married at First Sight, which first aired in July 2014, infringed on her treatment of a reality competition similarly titled Married at 1^st Sight, which she registered with the US Copyright Office in December 2011.

The plaintiff’s treatment describes a reality competition where two contestants win the chance to marry and various prizes. The show plays out over several episodes in which the contestants, after going out on a twelve hour date, are judged and eliminated by a matchmaking/coaching team and the viewing audience. Eventually, the favorite couple is chosen and has the opportunity to get married and win the grand prize consisting of a “dream house,” “dream wedding,” exotic honeymoon and $250,000, provided they stay married for six months. The treatment suggests additional episodes that would follow the couple as they plan their wedding, on their honeymoon, living together and taking part in various “exciting activities” and “therapeutic tasks.” Along the way, friends and family are introduced to add drama as they offer their views of the marriage. According to the treatment’s logline “It’s ‘Dharma & Greg’ meets ‘Platinum Weddings.’”

In contrast, AETN’s series Married at First Sight, is a docu-series that follows the experiences of three couples, chosen and matched by a team of four experts. The couples meet for the first time at the altar. The series follows the couples on their honeymoons and as they settle into their daily lives, choosing where to live, adjusting to each other’s schedules and interacting with their family and friends. After one month of marriage, the experts and the couples gather to learn which couples decide to stay married and which decide to get divorced.

On these facts, the court held that plaintiff’s treatment consisted predominantly of unprotectable scenes a faire, and that as a matter of law, the total concept and overall feel of the treatment was not substantially similar to that of Married at First Sight. Williams v. A&E Television Networks, et al, 14-cv-9893 (S.D.N.Y., August 13, 2015). The court explained that “[p]laintiff does not own an enforceable copyright in the general idea of a reality show about arranged marriages or marriage between strangers.”

The court observed that many of the alleged similarities were elements that could not be protected, such as interactions with coaching teams, pre-wedding events, elaborate honeymoons, and episodes featuring the couples moving in together, family members and friends, and the couple’s everyday life, because all stem from the uncopyrightable concept of a reality show about arranged marriages. The court went on to compare the overall concept and feel of the works finding that, as a matter of law, the treatment’s reality competition show was not substantially similar to AETN’s social experiment in arranged marriages.

The court’s opinion applies important copyright principles in the context of unscripted programming, and provides a useful roadmap as to which elements in such programming can and cannot be protected. Importantly, the opinion was rendered at a very early stage in the case, and expressly reaffirms the principle that, on a motion to dismiss, the court can compare the works at issue and rule on substantial similarity as a matter of law. This is a principle important to all content creators and broadcasters that regularly face copyright infringement claims.

Note: The authors were counsel to the defendants in the case described. The views expressed in this article are exclusively those of the authors and do not necessarily reflect those of Sidley Austin LLP and its partners.