reality television programme "Project
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
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
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
that they created "Project Runway independently of any purported exposure to
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
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.
Film & TV