New Reality TV Show IP Case

RDF Media Ltd. v. Fox Broadcasting Co., 74 USPQ2d 1769 (C.D. Cal. May 11, 2005) [BNA subscription required]. The producers of “Wife Swap UK” sued Fox for its “Trading Spouses” TV show, alleging copyright infringement and direct/contributory trade dress misappropriation. Fox brings a motion to dismiss the claims. With respect to the trade dress claim, the plaintiff’s complaint alleges that Fox imitated:

“[t]he selection, compilation, arrangement, sequence, and combination of the cast of characters, the structure of each airing of a complete swap, the sequence of events, the plot, the tone, the theme, the pace, the scene set-ups, the narration, the dialogue that arises from constructed situations, the contrasting settings, the structured before-and-after dialogue, the topics explored, the dramatic and comedic effect created by music, and the introductory segment….”

The court doesn’t take much time to shred this claim, saying that it is really a copyright claim in the guise of trade dress. While a work can be simultaneously protected by copyright and trademark law, any trademark protection does not extend to the “corpus” of the copyrighted work (as opposed to the title, individual characters, etc.). As a result, the copyrighted work is the product itself, and to hold otherwise would make copyright law protection superfluous because the work could be protected under trademark law in perpetuity rather than under copyright law’s limited duration. Interesting cites to Dastar in this part of the opinion.

So the plaintiff’s attempt to get trade dress protection for the structure of its reality TV show loses on a motion to dismiss (without leave to amend).

This is an interesting case for several reasons. First, there is some good and thoughtful discussion about the overlaps and distinctions between copyright and trademark. Second, I’m interested in the plaintiff’s attempts to stretch trade dress law so far–did they really think they were going to win that claim? Finally, I’m personally fascinated by the burgeoning IP caselaw involving reality TV shows. Other recent opinions that come to mind include the lawsuit by the 80s band Survivor (remember “Eye of the Tiger”???) against the TV show “Survivor” and the recent Survivor v. Surfvivor lawsuit. Seems like they should make a reality TV show about litigating reality TV show IP cases!