San Diego – The United States District Court in New York recently ruled in Favor of NBC and Reveille Productions, an affiliate of NBC, in a copyright infringement complaint. The complaint, filed by Sonya Latimore, alleged that the idea behind the hit reality show “The Biggest Loser” was taken from her four-page synopsis entitled “Phat Farm/Fat Farm – A Weight Loss Adventure” without her authorization.
Judge Alvin Hellerstein dismissed the case on the basis that there was a lack of substantial similarity between “The Biggest Loser” and “Phat Farm.” Latimore was unable to provide evidence of copyright ownership, actual copying by the Defendants, and unlawful appropriation of copyrighted materials. In order to establish actual copying, the Court of Appeals must apply the “Ordinary Observer” test to decide “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance or value.” Elements of protectable expression would include total concept and feel, characters, theme, plot, place, setting, and sequence.
The general concept behind “Loser” and “Phat Farm” involves emotional and physical challenges for overweight individuals who compete with each other to get fit and healthy in order to be the last remaining contestant on the show. NBC stated that the Copyright Act does not protect those elements of the concept since they would be key to any weight loss reality television show.
Even if Latimore had proven there were strong similarities between the two shows, she could not prove that NBC had access to her synopsis, though she argued that her agent had given the network a copy. NBC was able to provide evidence that in 2003, Reveille Productions’ executive Ben Silverman was actively seeking ideas for a weight-loss reality show. Around the same time, a friend of Silverman’s who worked for 25/7 Productions, had registered a treatment for “The Biggest Loser” with the Writer’s Guild after getting an idea from a “Trainer Wanted “ advertisement at his gym. The two friends pitched their ideas jointly to NBC which liked the general concept and thus created the hit show.
Besides substantial similarity, proving clear access to the work by the alleged infringer can be crucial in these types of cases.