USDC E.D. New York, March 24, 2011

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  • Court grants defendants’ motion to dismiss copyright infringement claim, finding that plaintiffs’ treatment for a sports-themed reality television show is not substantially similar to defendants’ sports-themed reality television show called Pros vs. Joes.

Plaintiffs created and copyrighted a treatment for a reality television show called Two Left Feet that features amateur athletes competing against professional athletes, judging by two hosts or announcers, and prizes. Plaintiffs filed a copyright infringement action against the network that broadcast a reality television show called Pros vs. Joes in which amateur athletes compete against professional athletes.

The court noted that the Second Circuit “has not yet had the opportunity to articulate how similar reality television programs must be for a ‘substantial similarity’ to exist between them under the copyright laws. But the Second Circuit’s general framework for analyzing copyright claims is certainly insightful.” As such, the court applied the “ordinary observer” test which asks whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”

The court dismissed the complaint, holding that “no objective observer could conclude that Two Left Feet and Pros vs. Joes share a substantially similar ‘total concept and overall feel.’” According to the court, plaintiffs’ treatment “consists largely of stock concepts and ‘scenes a faire,’ such as fielding a baseball hit by a professional baseball player, and images depicting ‘panic, tension, relief, or failure.’”

And, although copyright law may protect the original way in which an author has selected, coordinated, and arranged various elements, the court stated that plaintiffs’ treatment contains limited original selection, coordination and arrangement of unprotectable elements. The court noted that plaintiffs “concede as such” since their treatment contained “some ambiguity or lack of detail” so that the sequence of events would be determined by “what the people in the show end up doing.” According to the court, “the treatment’s vagueness, however intentional, also undercuts its protectability” because the less specifics and details it contained, “the less it uniquely and imaginatively ‘selected, coordinated and arranged’ the stock elements contained within.” Furthermore, the court held that the stock elements in plaintiffs’ treatment are “largely inherently functional to the idea of a sports reality show, not ‘original’ creative expressions of any particular idea.” The court acknowledged that plaintiffs’ treatment did select, coordinate and arrange some elements in a creative, non-purely functional way – such as including in the group of amateurs some “goofballs” for comic relief and ringers “to make the other guys envious and competitive” and forcing the contestants to sing – but the court noted that none of these elements are contained in the defendants’ show.