A fashion-themed reality television programme “Project Runway”, hosted by the supermodel Heidi Klum, was recently the subject of a format rights claim in the USA by two fashion designers (Cynthia Rodriguez and Elizabeth Zwiebach).
The plaintiffs had a treatment for a show they called “American Runway” which was also a fashion-themed reality programme. They sent their treatment to an agency which sent it onto a subsidiary of IMG World which manages Ms Klum. The plaintiffs claimed that “Project Runway” infringed the copyright in their treatment.
This interesting, if not groundbreaking, summary judgment decision comes from Judge Loretta Preska of the United States District Courts Southern District. It was Judge Preska who in similarly forthright terms rejected the similar claim in 2003 by the rights owners of “Survivor” concerning “I’m A Celebrity… Get Me Out Of Here!”
The Outcome of the Claim
“Project Runway” premiered on the Bravo network in December 2004. Shortly after this the plaintiffs unsuccessfully brought a copyright claim against the producers and others connected with the programme. The defendants were granted summary judgment on a number of bases.
The first one was that the plaintiffs failed to show that the defendants had actually had access to their treatment. The email evidence relied on by the plaintiffs to prove access by the defendants was found to be wholly unconvincing by the court, which accepted the defendants’ sworn testimony that they had never seen the plaintiffs’ treatment. The plaintiffs also failed to show the requisite substantial similarity between their treatment and “Project Runway”.
The Judgment of Loretta Preska
Judge Preska said that her examination should encompass “the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the [plaintiffs’] and the [defendants’] works.”
The judge concluded that no reasonable jury could find that the plaintiffs’ treatment and “Project Runway” were substantially similar. She found that the similarities highlighted by the plaintiffs were predominantly “scènes à faire”. “The use of a panel of judges composed of fashion industry experts, a design work room with sewing machines, a specific number of contestants, professional models, hairstylists, make-up artists, weekly episodes and the setting of New York … all necessarily throw from the uncopyrightable idea of a fashion design reality show.”
Finally, Judge Preska noted the defendants had also produced “ample evidence” that they created “Project Runway independently of any purported exposure to the Treatment”. She noted the defendants’ “substantial, undisputed testimonial and documentary evidence” that “Project Runway” was developed through a series of brainstorm meetings and outline revisions by the defendants before they could ever have used the plaintiffs’ treatment.
Judge Preska concluded that this body of uncontradicted evidence substantiated the defendants’ contention that the central copyrightable elements of “Project Runway” had “evolved slowly over an extended period of time well before Plaintiffs’ Treatment could have been available to the Defendants through Plaintiffs’ theory of access.”
It seems that this case was doomed from the outset. However, the ability on the part of the defendants to show via contemporaneous documentation the development process of their programme was significant in enabling them to obtain summary judgment.
Although it may be a chore for busy creative teams to keep careful records of their work, this case does show how important it is to do so. The value of intellectual property increases directly in proportion to your ability to defend it.