Recently, the a Federal Court in the State of New York was asked to decide whether the Spike television show, “Pros v. Joes”, was similar enough to a proposed show called “Two Left Feet”, such that it infringed upon the copyright issued to Two Left Feet.  Castorina v. Spike Cable Networks, Inc., No. 10-2954 (March 24, 2011).
In 2004, Plaintiffs Christopher Castorina and Steven Morse (“Plaintiffs”) pitched a treatment for a television show called Two Left Feet.  That treatment proposed a show where amateur athletes would compete against professional athletes.  In 2006 after Pros v. Joes debuted on Spike, the Plaintiffs sued Spike in the United States District Court for the Eastern District of New York claiming that Pros v. Joes was so “substantially similar” to Two Left Feet that it infringed upon the copyright issued to Two Left Feet.
The Plaintiffs claimed that the two shows were similar in that: 1) each portrayed competition between professional athletes and amateur athletes; 2) the competitions were in the sports of basketball, hockey, baseball, and football; 3) each employed two judges of notably different personalities and backgrounds; 4) each had guest appearances by celebrity sports figures; and 5) each used virtually the same language to promote the shows.  The Plaintiffs took the position that “no theory of coincidence, simultaneous creation, prior common source or any explanation other than copying” could account for the similarities.  Id.
In order to establish copyright infringement, the Plaintiffs had to establish: 1) ownership of a valid copyright; and 2) copying of constituent elements of the work that were original.  Id.  To establish the second element, the Plaintiffs had to prove that Spike actually copied the Plaintiffs’ work and that the copying was illegal because “a substantial similarity exists between the defendant’s work and the protectable elements of plaintiffs’.”  Id.
At the outset, the court noted that, “the standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” (the “Ordinary Observer Test”). Id. citing Peter F. Gaito Architecture, LLC v. Simeone Development Corp., 602 F.3d 57, 63 (2d Cir. 2010).  When applying the Ordinary Observer Test, a court must ask whether “an average lay observer would recognize the alleged copy as having been appropriated from copyrighted work.”  Id. citing Gaito, 602 F.3d at 63.  The inquiry must address whether the “alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged the elements of his or her work.”  Id.  There must be substantial similarity in the expression of ideas and not just in the ideas themselves.  “If a work ‘copies the original way in which the author has selected, coordinated, and arranged’ these unprotectable elements to such an extent that the copying work is substantially similar to the ‘expression of ideas’ and ‘total concept and overall feel’ of the copied work, infringement can occur.”  Id. citing Gaino, 602 F.3d at 66-67.
Based upon the evidence presented, the court determined that Two Left Feet consisted largely of stock concepts and Scène à faire – the concept that certain elements of a creative work are not protectable via copyright because they are mandated by or customary to the genre.  The court held that Pros v. Joes could only infringe upon Two Left Feet “if it copied the ‘original way in which the author has selected, coordinated, and arranged’ various elements to such an extent that its ‘expression of ideas’ and ‘total concept and overall feel’ was substantially similar to the Two Left Feet treatment.”  Id. citing Gaino, 602 F.3d at 66-67.
The court determined, and the Plaintiffs conceded, that the Two Left Feet treatment contained only limited original selection, coordination, and arrangement.  Plaintiffs claimed that they purposely left the treatment vague to show their “flexibility.”  Unfortunately for Plaintiffs, the court found that “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.”  Id. citing Gaino, 602 F.3d at 66-67.  The treatment’s selection, coordination and arrangement of those stock elements were also largely inherent to a sports reality show and “not ‘original’ creative expressions of any particular idea.”  Id.
The court also pointed out numerous differences between the shows.  For example, while Two Left Feet relied heavily on the dynamic between two judges, one “good” and one “evil”, Plaintiffs did not allege that Pros v. Joes utilized a similar creative choice.  Two Left Feet also envisioned the hosts providing their subjective beliefs and acting as judges, while winners on Pros v. Joes were determined using an objective points system, such as the number of baskets scored.  Also, in Two Left Feet the amateurs competed against the professionals in the sport played by the professional.  In Pros v. Joes the contestants might compete against the professional in the professional’s sport, but with a twist – e.g.  shooting baskets from a moving conveyor belt.

In conclusion, the court held that based upon the evidence “no objective observer could conclude that Two Left Feet and Pros v. Joes share a substantially similar total concept and overall feel.”  Id.  As a result, the court granted Spike’s motion to dismiss the Plaintiffs’ complaint.

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