Reality TV Shows and the Copyright Standard
By Asher Kest
Reviewed by Cynthia Amis
The consumer’s steady appetite for reality television, along with the low costs associated with its production has led to an explosion of such shows. Network and cable stations continue to green-light reality shows in just about every area imaginable, and as they do so, there is inevitable overlap between different show ideas and settings. Shows such Top Chef and Iron Chef have similar concepts, as do Trading Spouses and Wife Swap, Nanny 9-1-1 and Supernanny; many other similar comparisons could be made. As more reality shows reach the airways, the question of whether such shows are copyrightable, and indeed what elements may be copyright protected, becomes increasingly relevant.
However, since reality shows do not easily fit into the copyright paradigm, and because an idea itself cannot be copyrighted (only its fixed in a medium of expression, as per 17 USC § 102), many copyright infringement suits are decided in favor of the defendants. An idea, whether it be lovers in extenuating circumstances in a fictional work such as Romeo and Juliet, or a show that pits chefs against one another in competition such as in Top Chef, is not inherently subject to copyright protection. The expression of a reality show, such as the particular elements that make up a show, can be protected. Thus, even when there is similarity between two shows, if it is the concept and ideas that are at the core of the similarities, courts are not likely to find infringement.
As noted in Nimmer on Copyright, the substantial similarity test has become the primary mode to determine whether permissible copying or infringement has occurred. Unfortunately, the methodology for such determinations is “ad hoc,” as noted by Learned Hand. There are four main tests that have been utilized in determining whether infringement has occurred under the rubric of substantial similarity; they are abstraction, pattern, dissection, and total concept and feel. This article will not discuss the differences between the tests, but suffice to say, there is much overlap. Unfortunately, as noted, distinguishing between permissible copying and infringing remains difficult. There is a spectrum of copying which has at one end a total copying of a show and thus infringement, and at the other the copying of only a few basic elements and of little substantive value.
CBS’s Survivor is considered by many the reality show that first ignited the current trend, and in fact CBS has pursued a number of copyright claims in attempting to prevent others from creating or airing similar shows. CBS initially pursued an injunction against Fox’s Boot Camp for using the combined elements they claimed were similar to Survivor, and although the claim was later dropped, the judge initially noted there that the total concept and feel test was appropriate in determining the similarities between the two reality shows. A similar action was brought against ABC’s I’m a Celebrity, Get Me Out of Here, which was also accused of infringing on the copyright of Survivor. In CBS Broadcasting Inc., v. ABC, Inc., The District Court held that although the two shows operated on a similar premise, the execution of the shows, or what we would rightly call the execution of both shows, was different enough so as to avoid substantial similarity based on the total concept and feel test. Survivor was a serious show, whereas Get Me Out of Here had a more comedic tone. Furthermore, the latter had celebrities as contestants, as opposed to the ostensibly normal people on Survivor. The court’s analysis in the case, while based on the total concept and feel test, also overlapped into the dissection test, as the judge looked at a number of elements of the shows to determine that there was no infringement. In short, there is no bright line test to look to regarding what elements are copyrightable and may be protected from copying. Also, because the elements of reality television remain basic in format, especially since that format resembles competitions, which cannot be copyrighted, many potential infringement claims simply are not pursued by the networks.
So what can be copyrighted in a reality show? The point of intellectual property copyright law is to protect that which is expressive of the creative act. As such, the elements that are a part of a show that are designed and controlled by the creators can be protected. Thus the use of devices such as a particular trophy or reward, or a specific sequence or visual used for eliminating contestants may be recognized as a unique expression of that show.
Furthermore, It should be noted that as established in Feist Publications v. Rural Telephone Service,  even compilations of otherwise uncopyrightable materials may be protected by copyright, provided it is an “original selection or arrangement of facts.”  Thus the creative act of organizing and choosing a format involving a number of particular elements may also lead to a broader copyright for a reality program. So even if a number of typical reality show elements are used in creating a reality program, if the production choices and organization of the process are of sufficient creativity, copyright protection can be afforded so that another show would be held to have infringed if they copy too many of the particulars of the copyrighted work, despite said elements being otherwise uncopyrightable nature. On the spectrum mentioned above, the closer another show came to the copyrighted program in number of elements used, be they unique and protected or not, the more likely a court would be to find infringement. Of course, no bright line exists, and such decisions are ultimately made by a judge.
Nonetheless, in the unproven world of reality television, the best protection can be provided by explicitly writing out the particular unique elements of the show, and by a clear explanation of the stylistic choices in organizing and producing the reality program in question. It is absolutely necessary to delineate what creative choices and elements of a reality show are expressed in order to obtain the best possible outcome in the case of an infringement action.
 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
 CBS Broad. Inc., v. ABC, Inc., No. 02 Civ. 8813 (LAP), 2003 U.S. Dist. LEXIS 20258 (S.D.N.Y Jan.
 499 U.S. 340.
 Id at 350.