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Mar 31 2011

Federal Court Shows Danger of Submitting Proposals for Reality Programming – Most Ideas Are Not Protectable

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”.

 

 

 

 

9 comments

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  1. Todde Webb

    Great insight…Thank-you.

  2. Kimber Lee

    Thank you for this article! Especially the advice of registering your idea with the WGA. It’s free and if you’ve written something it won’t hurt to register it. I am also looking to pitch a reality t.v. show and I will be aware and prepared of what can happen. Again, great article! Thanks.

    1. Oscar Michelen

      Thanks – let me know of course if you need legal advice after your pitch!

  3. Deborah

    I must say that I really needed this article > I have written concepts for six different reality shows of different genre’s from the feel good like home make over to the spike t.v man show to the american Idol family and also a drama feel good for parents.. I read in the writers vault how they could get your Ide sold by submitting a treatment ,because this is where producers look for Ideas. I still did not submit and i am so very happy I late called the library of congress and decided to go that route. I now will also add the WGA also. I will also trademark th ename and our catch slogan which will also encompass what the show is about. I am now developing the show in great detail and I will only submit two as I am sure this will be a learning process.

    I would like to also know what state you are n and I would like to speak with you .I am in Dallas,Texas area. I know that I do need an attorney and I would love to talk further. tank you for your very informative article sad but it’s all a learning process and you are truly paying it forward t those of us who may not be able to afford an attorney. It is sad that the spike network did not offer what could have been a very life changing situation to those people but it’s the culture we live in “Show Me The Money” values and morals can’t be bought.

    1. Oscar Michelen

      Thanks for the kind words and I am glad the article helped. I am in New York you can reach me at omichelen@cuomollc.com

  4. Barbara

    I pitched a show to TLC 3 years before they produced “The Long Island Medium”…I pitched through the producers portal, had email contact with the Sr VP of Development who indicated “they were going in a different direction”. I had a WGA number, an entertainment lawyer and it was still stolen. The truth is that this happens all the time in this industry. Unless you are inside a production company, you are screwed. A network or production company can take your idea and tweek it just enough, to “make it their own”. I agree with the writer, fundraiser, produce several episodes and then pitch.

  5. EllenGunn

    This a very EYE OPENING article, the internet and books stores are full of ” You can do this” themed literature telling how easy it is, very rare I have found an article written by someone looking in and not a vic. You really tell the harsh reality. Myself have had someone literally take my concepts right out of the computer and notebooks upon conception and he has made millions as i still struggle to survive, lessons learned but not forgotten. The more you know the more you grow I guess… Thank you for reopening my eyes to this kind of thing and most importantly sharing it with everyone who takes the time to stop read and learn.

    1. Oscar Michelen

      You can – you just need to make sure you are protected properly and that what you have is protectable in the first place.

  6. Jeanette North aka CHARITY GENIE

    The Reality of Reality Show Ideas
    CHARITY GENIE NEEDS RESCUING!

    Not all Southern Grandmothers cook with butter, some do yoga and just stir things up! Jeanette North, author of “CHARITY GENIE!” from Owasso, Oklahoma wrote a book designed to help small charities. It is based on her experiences of taking an organization $10k in debt to over $220k in the bank in 22 months and taking care of the needs of the citizens for two cities! You may say what does this have to do with Reality TV?
    One Sunday morning as she stepped out of bed, it HIT her! Her book was a Reality Show! This is BIG! This show could help all the small charities nationwide. How and where to begin? So she searched the Internet. Since major networks will not accept unsolicited ideas, how do these barriers get knocked down? The only options seem to be “date sites” for matching up creative ideas with major networks.
    CHARITY GENIE chose one, paid the small fee, paid for a consultation, and sent them a copy of her book. The CEO and Founder said “…you have a project that is great in the real world, but not entertaining enough to be a TV show.” “…ACE CARD you’re holding because the world of Charity is full of incredible stories that will fuel the casting.” He tried to get her to change her concept and drop the original ideal all together, but she did not! This website also encouraged the writers to enter a contest with Reality TV Format Awards. CHARITY GENIE RESCUE was a Top 10 Finalist in 2015. No responses, done deal right? Wrong, in October 2016, it was announced on a major network morning show! Her reality show with concept and exact wording now had a different name.
    In an article “Federal Court Shows Danger of Submitting Proposals for Reality Programming-Most Ideas Are Not Protectable” from the website courtroomstrategy.com by Attorney Oscar Michelen, Judge Seybert in Castorina v. Spike Cable Networks, Inc. granted the motion saying . ..
    ”Rather, the treatment’s copyright protect ability, 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.”
    This was a long process with a large learning curve for CHARITY GENIE and all the other creatively talented reality show writers in the US. The real losers in this story are all the small charities nationwide that will not be able to receive new donors and much needed goods and services from new sources, which was the original purpose behind this show. The intent was to help solve their problems allowing them to increase their services to those in need and not just put a bandage on need!
    In this year of election, many people are not happy with outcome, but do they realize they are NOT helpless. Solving the issues of our nation are and should a movement by us for us. Is it possible for the new trend of reality television to actually make a difference in the lives of their viewers? Networks have the power and capability to produce shows that produce social changes! We as a society are more than the “color of nail polish choice” of a celebrity or are we?

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