Copyright Law In Reality

Reality television and film are sweeping across America. More and more networks are picking up multiple reality television shows. With growth in popularity comes growth in lawsuits involving those shows. Reality television and film are prone to the same copyright infringement lawsuits that affect regular television shows and film, even though there is usually no set script in reality television.

Recently in New York, two decisions came down establishing a framework for what elements must be present in a reality show or film to allow for a copyright infringement lawsuit to stand. These decisions indicate that it courts will not hold reality shows or film to a different standard. In Castorina v. Spike Cable Networks, Inc., the judge focused on the contested work's total concept and overall feel as well as the amount of originality and protected elements the plaintiff's work has. 2011 U.S. Dist. LEXIS 31518 (N.Y. March 24, 2011). The judge in Muller v. Twentieth Century Fox Film Corporation, took a more traditional approach to analyzing the copyright claim in that case, and looked to the actual copying (including access, probative similarity, and independent creation) and then looked at improper appropriation (including overall concept and feel, theme, plot, characters, setting, pace, sequence of events, and dialogue), however the judge found the two works to tell very different stories. 2011 U.S. Dist. LEXIS 34288 (N.Y. March 30, 2011).

Although decisions in copyright infringement cases have been written for regular television shows and film, these two New York decisions should set a standard for what is to come in reality television and film copyright cases. With these two decisions in the books, writers and producers will now know that in order to proceed on a copyright claim for a reality television show or film they will need to meet the same standards as for a regular television show or film, and although the show is not scripted, the judge will focus on the elements of copyright infringement that do not focus on the script, such as the total concept and overall feel of protected elements.

As more television shows and films come out, whether reality or scripted there are going to be more and more cries of copyright infringement. The two decisions above show that regardless of if a show or film is reality or not the analysis that the court does is going to be the same. The court is going to require a showing of an actual copyright in the work and copying of constituent elements of the work that are original, proved by actual copying and improper appropriation. Although the court may weigh certain elements differently, these two New York decisions prove that regardless of genre, with more shows created, there are going to more and more copyright infringement claims that courts will hear, but no matter how many claims are on their docket, they will apply the same standards for copyright infringement.

Elaine Rogers is a Partner in the Intellectual Property Group of Meister Seelig & Fein LLP where she concentrates on entertainment-related matters.

Eileen Griner, graduate of Suffolk University Law School, contributed to this article.