District court denies defendants’ motion for summary judgment, finding that a reasonable fact finder could find that the protectible elements of two bass fishing competition shows were substantially similar.
Plaintiff brought suit against defendants alleging that their television show Ultimate Match Fishing infringed his copyrights in nine episodes of a televised competitive bass fishing show known as Match Fishing, which plaintiff created, wrote, produced and directed. Plaintiff holds 13 copyright certificates, including four for competition rules and nine individual episodes from 1981 to 1988, and asserted that Ultimate Match Fishing copied 16 enumerated “original constituent elements” of Match Fishing. The district court denied defendants’ motion for summary judgment, finding that a reasonable trier of fact could find the two programs substantially similar with respect to original, protectible elements. The court also denied defendants’ motion for partial summary judgment, rejecting the argument that infringement is impossible, as a matter of law, with respect to five missing episodes of Match Fishing, because that court could not undertake a side-by-side comparison of the episodes with Ultimate Match Fishing. While it denied defendant’s motion for partial summary judgment that the copyrighted rules could not, as a matter of law, be infringed by defendants’ television program, the court did grant defendant partial summary judgment holding that the rules – an original work and three derivative works – constituted a single work for statutory damages purposes.
At the outset, the court considered the 16 specific constituent elements that plaintiff alleged defendants had copied and that defendants argued were unprotectible either because they were not original or were scenes a faire that flowed naturally from the topic of “sports competitions.” Noting that “sports competitions” was too broad a category and that the more appropriate topic was the narrower “televised bass fishing competitions,” the court found that while a number of the elements were not protectible because they are either not original (using a tournament bracket, dividing matches into four periods, determining a winner by fish weight, having the announcer inject commentary, placing microphones on the competitors and encouraging competitive banter between the two fisherman) or were scenes a faire related to a televised bass fishing competition (using a coin toss, assessing penalties, including reducing the weight of the fish, crossing line, following the competitors’ boat with a camera crew), the remaining constituent elements were protectible. These elements included creating an arena for the contest by bisecting the boat with a line that extends outside the boat to the water surface, putting both competitors in the same boat with the one in the front controlling the boat, and with control switching after each period, uniformed referees and imposing penalties such as weight deductions for crossing the line and other infractions. After separating the protectible and non-protectible elements of the shows, and noting that Plaintiff’s selection and arrangement of the constituent elements of Match Fishing required a minimal degree of creativity and were therefore also protectible elements, the court concluded that that a reasonable trier of fact could conclude that the shows were substantially similar based on the protectible elements, and despite some “minor differences” (the number of referees, the amount and tenor of the banter between competitors and commentators of Ultimate Match Fishing, different weight penalties for casting over the center line, different time periods, and more use of music and flashy production value in Ultimate Match Fishing, which the court attributed to more modern technology).
The court also denied defendants’ motion for partial summary judgment as to the five episodes of Match Fishing that plaintiff had not provided to the court, rejecting defendants’ argument that without the episodes the court could not perform the required side-by-side analysis to determine substantial similarity. Noting that a trier of fact need not view every episode of television programs when the side-by-side comparison is not of the unique content of individual episodes but of the program’s format, the court concluded that the question for the trier of fact was whether the missing episodes also contained the format and that secondary evidence, admissible to prove the content of the missing episodes, might be sufficient to establish the missing episodes’ content. “There is a fact question whether protectible elements of the five missing episodes are, as Plaintiff asserts, ‘nearly identical’ to those in the produced episodes. Although Plaintiff has a difficult task, partial summary judgment on this point is denied.”
The court also rejected defendants’ argument that, as a matter of law, the textual rules cannot be infringed by producing and broadcasting a television show. Plaintiff claimed that defendants copied the format or treatment of Match Fishing, as expressed in the copyrighted rules, in producing and broadcasting Ultimate Match Fishing. Citing the examples of books and written treatments, the court noted that text can be infringed by a television show and concluded that the text of the rules together with their copyright certificates “do describe enough of the format of Match Fishing to deny partial summary judgment on this point.” The court did grant defendants’ motion for partial summary judgment on the issue of statutory damages, however, holding that, based on the copyright certificates, the four versions of the copyrighted rules were one work – the original rules and three revisions that built on preceding iterations.