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The Wacky World of Reality TV & Litigation –

By Kevin J. Greene, J.D., Professor, Thomas Jefferson School of Law

he proliferation of reality-type ment claims are problematic in the reality determine if the shows were substantially shows, from “Love and TV format context. This is because copy- similar. A good defense to the suit would Hip-Hop” to “Keeping Up with right law does not protect basic ideas or be that the similarities extend only to the the Kardashians” has transformed concepts, but only the expression of ideas idea of a competition in a remote setting, the market for commercial television. in a tangible medium. However, but not the expression of the programs. , it is said, “is now rec- law does not require novelty in expression, Since copyright does not protect raw ideas, ognized as a staple of television that has but a very, very low standard of original- it would be difficult to see how “Boot thoroughly altered writing, production ity (just listen to commercial radio to get a Camp” takes any protectable expression and distribution practices” in the television sense of the standard). from “Survivor”,in the same way that industry.1 As the reality television has Copyright infringement occurs whenev- cannot claim a monopoly expanded, legal disputes, many as wacky as a defendant violates any of the exclusive on the idea of evaluating the physical attri- the shows themselves, have followed suit, no rights of a copyright owner without a valid butes of women by a panel of men. The pun intended. The legal exposure of reality defense. A successful copyright infringe- “Boot Camp” suit surprisingly survived a TV show, networks, producers and partici- ment suit against a major network or motion to dismiss by the producers, but pants alike is real. Indeed, a reality TV studio can generate potentially huge recov- subsequently settled. participant in the show “Dating Naked” eries. The largest copyright infringement Copyright is generally a poor vehicle sued the network over “negligently” expos- recovery to date was for a whopping $1.3 to address in the reality TV ing and displaying the plaintiff’s genitals.2 billion for infringement of software.5 In the show context, and there is evidence that Whether the lawsuits (or the underlying music context, a jury awarded the heirs of producers and networks have learned this programs) serve social utility is debatable. the iconic singer $7.4 million lesson. Following a number of copyright What is clear, however, is that the suits for infringement of Gaye’s song “Got to cases where reality TV show format claims have created a for lawyers, and Give It Up” by the song “Blurred Lines.”6 were dismissed by the courts, “networks have developed case law that is central to Copyright infringement lawsuits and producers seemed to accept the notion the field of entertainment law. provide an automatic forum in federal that reality formats were not the appropri- Entertainment law is a field that consists court and permit generous recovery of ate subject of copyright protection.”9 at its core of two areas of law−intellectual both statutory damages (up to $150,000 The bottom line is that copyright property (IP)−particularly copyright, trade- for willful infringement) and attorney’s claims against reality shows generally mark, idea misappropriation and right of fees for the prevailing party. Copyright have little chance of success. For example, publicity issues−and contract issues.3 This claims also provide the ultimate hammer does “The Swan” infringe “Extreme article will explore some salient intellec- in litigation—the ready availability of an Makeovers”? The answer should generally tual property law and contract law issues injunction before trial. A major film studio be no−the idea of using plastic surgery to arising out of reality television programs. learned this lesson to their chagrin when transform applicants can’t be protected, Despite the lack of creativity of reality TV an obscure artist was able to enjoin exhibi- because copyright does not extend to basic shows, analysts have noted that “the legal tion of the film “Twelve Monkeys” for ideas. Similarly, anyone could produce a side of reality TV programming requires an copyright infringement of the plaintiff’s show where gay men or women help fash- uncommon level of creativity at least as far art drawing that the film used without ion-clueless heterosexuals transform their as lawyers are concerned.”4 consent.7 living space and appearances. This would In an early copyright infringement not constitute copyright infringement of Copyright Infringement lawsuit in the reality film context, the “Queer Eye for the Straight Guy” accord- Claims & Reality TV producers of the hit TV show “Survivor” ing to hornbook copyright law. 8 Copyright law protects both motion sued the producers of “Boot Camp.” In Copyright infringement claims in the picture works (film) and audio-visual works determining whether “Survivor” infringed reality TV context “are inherently weak (TV shows).However, copyright infringe- “Boot Camp,” a court would have to due to the unscripted nature of reality TV

14­­ FACTS & FINDINGS MARCH/APRIL 2016 and the well-established copyright threshold be appropriated by anyone. Accordingly, better for would be plaintiffs. , of ‘fixed’ expression.”10 However, despite while plaintiffs frequently claim idea misap- which does not require novelty, but focuses the lack of strong copyright protection propriation, they rarely prevail in court. on the existence of an express of implied for reality TV show formats, analysts have The granddaddy of idea theft in the TV contract. The California standard allows for noted that the reality TV show industry “is context involved the hit TV program, “The an idea theft lawsuit if based on an implied managing to survive and thrive in an envi- Cosby Show.” There, a Federal or express contract. The California standard ronment that offers only a limited level of Court in Murray v. NBC held that the orig- came into play in a recent lawsuit involving [] protection…”11 inator of the idea for what became “The the hit reality TV show, “Ghost Hunters.” Cosby Show” could not prevail against The plaintiff Montz “pitched” his Idea Theft−Idea NBC.13 The idea submitter, Murray, had idea for a reality TV show about tracking Misappropriation Claims presented numerous “pitches” to the net- ghosts. Under California law, the conduct If copyright claims are the handsome work for a show that would feature of the parties−such as presenting screen- of the entertainment world, idea a non-stereotypical African-American fam- plays to TV studios−can create an implied misappropriation claims are the ugly frog. ily and would star Bill Cosby. contract, even where there is no written Idea theft is thought to be rampant in New York law does not protect ideas express agreement. However, the trial court, —indeed; some analysts have from misappropriation unless the idea is and later the 9th Circuit Court of Appeals contended that idea theft is so both novel and concrete. Accordingly, the dismissed the plaintiff’s claim, because it 14 in Hollywood as to comprise a standard Murray Court held that the idea of a sitcom conflicted with federal copyright law. In business model.12 Virtually all entertain- about a non-stereotypical African-American contrast, in a case involving the idea theft ment projects−TV shows, movies, plays, family was insufficiently novel to warrant of movie concept which became the film books, and video games−begin with an protection (notwithstanding that no such “Rounder’s,” the Ninth Circuit allowed the idea. Imagine, for example, the value of the show had ever existed pre“Cosby”−when claim for idea misappropriation to proceed, idea for a hit reality such stereotypical shows such as “Good Times” because the implied agreement there was as “American .” Yet despite their value, and “Sanford & Son” proliferated. to the studio, Miramax Films, to pay the from a legal perspective, ideas receive the In California, where much of the reality plaintiff for his idea. In contrast, in Montz, least protection among IP regimes. As a TV industry resides, the standards for idea the agreement was for the plaintiff ghost general rule “ideas are as free as air” and can theft are less harsh, although arguably little investigators to retain copyright ownership continued on page 16 ©Haywiremedia MARCH/APRIL 2016 FACTS & FINDINGS ­­15 A Bonanza for Lawyers continued from page 15 of the proposed TV show. what he terms the “oppressive” contract Although idea misappropriation lawsuits The legal exposure Idol participants are forced to sign. Phillips rarely succeed in court, and the studios and claims, for instance, that he has been forced producers almost always win, the lawsuits of reality TV to perform for free for Idol sponsors, and are nonetheless a fixture in the reality TV has been denied basic information about show genre and the entertainment industry show, networks, the management of his music career. The generally. In a misguided lawsuit a number producers and question remains whether the Idol contract of years ago, talk show host and self-pro- participants must sign is worth the pound claimed “King of All Media” Howard Stern participants alike of flesh they must provide. sued the producers of ABC’s reality show is real. The agreement, like oth- “Are You Hot?” for idea misappropria- ers in the industry, permits the producers 15 tion. Stern contended that the “Are You details of the shows, most notably, a par- to reveal highly embarrassing information Hot” producers had appropriated the idea ticipant on the hit show “Survivor.” about contestants and to $5 million in pen- for their show from a segment on Stern’s Because reality TV show contracts are alties for revealing any of the show’s secrets. radio/TV show entitled “The Evaluators.” often in extreme in their treatment of par- Contestants give up basically all artistic The premise of Stern’s “The Evaluators” ticipants, challenges to these contracts have control over their careers, and some have entails a panel of “experts” (i.e., perverts) focused on their inherent unfairness. The complained that they were forced to record evaluating (in typically crude Stern fashion) unequal bargaining power between produc- music that they hate. whether female applicants would qualify ers and participants is typically vast, and A contentious point of reality TV for a photo-spread in Playboy or Penthouse. an unknown participant can expect show contracts is also arbitration clauses, Similarly, the premise of “Are You Hot?” to sign a submission waiver which in which limit a parties’ right to sue in court was to evaluate which contestants, male essence forecloses any shot at suing for for damages or other release. In a case and female, are the sexiest in America using copyright infringement or idea misappro- involving the hit show “Extreme a panel of judges. Stern’s suit would not priation.16 A reality TV writer recently Makeover,” a group of orphans sued ABC be viable in a New York court, since New sued E! Entertainment Television for and the show’s producers to escape an arbi- 18 York law requires a high degree of novelty, breach of contract and copyright infringe- tration clause in their agreement. and the mere idea of judging the physical ment for stealing his idea for the show At issue in Higgins was an arbitration attributes and attractions of female bod- that became “Opening Act.” However the clause, which required the orphan partici- ies is anything but novel (ever hear of the submission form the plaintiff writer signed pants to forgo their right to sue in court, Cave men?). Not coincidentally then, Stern acknowledged that “no contract or obliga- but allowed the producers the option of brought his suit in California. It is far from tion of any kind…is assumed by E!...or suing in court. The court felt this was sim- clear that Stern could have established may be implied against E! by reason of E!’s ply too much, and declared the arbitration either requirement−his case seemed patently review of the Material and/or discussions or clause unconscionable, meaning legally ridiculous in fact, but the case settled before negotiations we may have.”17 The chances unfair and unenforceable. The victory of resolution. of prevailing in litigation after signing off the orphans was short-lived however, as on such a waiver of rights are basically their underlying claim of misrepresentation, Contract Claims non-existent. breach of contract and unfair competition, Contract claims run the gamut in the Reality TV has proliferated because among others was soon dismissed. Like reality TV show context from garden vari- the costs of many programs are low, and other reality TV show contestants and par- ety to bizarre. Reality TV contracts are participants receive little in comparison ticipants, the orphan plaintiffs in Higgins known as being some of the most onerous to the massive revenues made by produc- learned the hard way: reality TV is great for in the entertainment industry, and perhaps ers and networks. A lawsuit from a recent producers and networks, but for most con- any industry. One common provision in American Idol winner highlights this testants, not so much. reality TV contracts is participants must persistent problem. ––––––––––––––––––––––––––––––––– 1 keep details about the show confidential. Season 11 winner has See Leigh H. Edwards, The Triumph of Reality TV: The Revolution in American In recent years, reality TV show producers sued the producers of American Idol before Television 11 (2013). have sued participants, who reveal secret the California Labor Commission to escape

16­­ FACTS & FINDINGS MARCH/APRIL 2016 2 This was a $10 million dollar lawsuit by a Protection?, 4 J. Business, Entrepreneurship Supreme Court. He participant from the show “Dating Naked” & L. 242, 257 (2011). then practiced law at against Viacom for failing to properly blur 10 See Brooke Olaussen, Why Copyright Law Cravath, Swaine and the participant’s genitals on the show. A Won’t Protect Reality TV, American U. Moore, where he rep- New York judge tossed plaintiff’s case—and Intellectual Property Brief, July 28, 2012. resented Time-Warner/ ordered her to pay attorney’s fees as well. See 11 See Stefan Bechtold, The Fashion of TV HBO. He subsequently Niewitz v. Viacom International, Inc., N.Y. Show Formats, 2013 Mich. St. L. Rev., 451, joined the New York firm Sup. Ct. Index No. 158029, March. 6, 2015. 455 (2013). of Frankfurt, Garbus, 3 See K.J. Greene, “There’s No Business Like Klein and Selz, where 12 See K.J. Greene, Idea Theft as a Hollywood Show Business: Using Multimedia Materials he represented clients Business Model, 7 Hastings J.L Sci. & Tech to Teach Entertainment Law, 52 St. Louis U. in the entertainment 15 (2015). L.J. 765, 767 (2008). industry, including 13 See Murray v. National Broadcasting Co., 4 See Aaron Gafni, “At Least You Don’t Have director Spike Lee, the 844 F.2d 988 (2nd Cir. 1988). to Sign Away Your Firstborn Child to Be a rap group Public Enemy, Geraldo Rivera, and 14 Reality TV contestant….Yet”, Lawlawland See Montz v. Pilgrim Films & Television, singer Bobby Brown. He has published numer- Blog (Oct. 13, 2010). Inc., 606 F3d 1153 (9th Cir. 2010). ous articles and book chapters on copyright law, 15 5 See Oracle Corp. v. SAP AG, No. 12-16944 See Grosso v. Miramax Film Corp., 383 F.3d trademark law and celebrity rights of publicity (9th Cir. 2013) ($1.3 billion jury verdict for 965 (9th Cir. 2004). in connection with the music and motion picture infringement of business application software, 16 See Complaint at 1, Stern v. Telepictures industries in journals such as the Harvard Journal affirmed in part). Prods., No. BC292018 (C.D. Cal. 2003). of Law and Public Policy, Hastings Entertainment and Communications Law Journal, and Syracuse 6 See Williams v. Bridgeport Music, Inc., CV 17 See Haraway v. E! Entertainment Television, University Law Review, among others. He was 1306004 (C.D. Cal. 2013). CV13-00628 FMO (C.D. Cal. 2013). selected a “Top Attorney” in in the field 7 18 See Woods v. Universal City Studios, Inc., See Higgins v. Superior Court of L.A. of intellectual property in 2005. 960 F. Supp. 62 (S.D.N.Y. 1996). County, 141 Cal. App. 4th, 45 Cal. Rptr. 3d 8 See, Survivor Productions LLC v. Fox 293 (2006). ✉ [email protected] Broadcasting Co., 2001 U.S. Dist. LEXIS 25511 (C.D. Cal. June 12, 2001) Kevin J. Greene is a professor at Thomas 9 See Jessica Bergman, Nom More Format Jefferson School of Law. Following graduation Disputes: Are Reality Television Formats from Yale Law School with highest honors, he the Proper Subject of Federal Copyright clerked for Justice James Brickley of the Michigan

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