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Pino v. Viacom, Inc., et al.

In this copyright infringement action, the United States District Court for the District of New Jersey dismissed the plaintiff’s complaint on summary judgment, rejecting the plaintiff’s claim that the defendants’ television show Pros v. Joes infringed the plaintiff’s treatment and screenplay for a sports reality show. Reviewing the relevant elements under the extrinsic similarity analysis conducted in the Third Circuit, the court held that the protectable portions of the plot, dialogue, mood, settings, pace, and sequence of events of the two works were not substantially similar.

Although the court noted that the works shared the common theme of professional athletes and amateur athletes competing against each other in sports contests, the court held that this similarity in theme alone was insufficient to create a material issue of fact as to whether the works were substantially similar. To the extent that additional common elements existed between the two works, these elements were scenes a faire “that flow necessarily from the idea of a sports-themed reality show that pits amateurs against professional athletes” – including “the presence of hosts who provide witty commentary on the contestants and competition, introductory sequences that feature highlights of sporting events and sounds associated with various sports, spotlights on professional athletes and amateur contestants, camera shots of athletic fields or arenas, trash-talking exchanges, and sports contests.”

The court likewise rejected the plaintiff’s contention that the sequence and arrangement of the unprotectable elements in the two works were substantially similar, explaining that the “random similarities” listed by the plaintiff did not suffice to demonstrate infringement of the plaintiff’s sequence and arrangement.