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Plaintiffs claimed their one-page treatment and three-page script for a cooking show called Showbiz Chefs was infringed by the Food Network talk-show Rachel Ray. The court took judicial notice, upon defendants’ request, that the following elements of a television show are common and prevalent in public works: a host, guest celebrities, an interview and a cooking segment. The court also stated that it could consider DVDs of Rachel Ray episodes referred to in the plaintiffs’ documents as well as several episodes submitted by the defendants to show episodes without celebrities. The court rejected the plaintiffs’ argument that it could not rule on a motion to dismiss without looking at all 150 episodes of Rachel Ray.

The court also stated that it could address the issue of substantial similarity as a matter of law on a motion to dismiss, and that a court can dismiss a copyright infringement claim on a 12(b)(6) motion if it concludes that no reasonable jury could find that the works are substantially similar or if it concludes that the similarities between the two works pertain only to unprotected elements of the works.

The court concluded that the generic elements common to both shows – a host, guest celebrities, an interview, and a cooking segment – were not protectible. The court also examined the plot, theme, dialogue, mood, setting, characters, and sequence of events of Rachel Ray and the plaintiff’s treatment and script and found that the protectible elements in each show were not substantially similar.