The Reality about Reality TV: How to Help Protect Reality Television Conceptsby Bridget Hauserman, Esq. (Entertainment Law Co.)
Have you come up with a brilliant and novel concept for a reality television show that you want to pitch to production companies and/or networks but are afraid that they might steal your idea? The reality of the situation is that they can and if they do, there is not much that you can do about it. However, there are certain steps that you can take to help prevent your concept from being misappropriated, or at the very least, provide you with a solid foundation to try to obtain a settlement if your concept is stolen.
The reason that a reality concept can be easily ‘stolen’ is that under US copyright law, ideas are not copyrightable. Pursuant to the US copyright law (Title 17 of the United States Code), in order for something to enjoy the protections of copyright, it must be an “original work of authorship fixed in any tangible medium of expression.” Unfortunately, writing down a reality show concept on paper still does not protect the general idea of the show. The more descriptive your treatment, the more you have that is potentially subject to copyright protection, however, there are certain generic elements associated with the idea that will not be protectable. Take for instance the idea of a reality show about competing chefs, it is likely that it will feature a host, cook-offs, kitchen settings, time limits, special ingredients and other similar factors. If reality ideas and elements could be protected then we would have seen American Idol suing X-Factor, the Voice and other competitive talent shows.
To further protect themselves from any lawsuit based on a claim that they stole your idea, all major production companies and networks require that anyone submitting content for consideration sign a submission release, which, among other things will have language requiring you to recognize that others, including their employees, may have submitted or made public similar or identical material which they have the right to use and for which you shall not be entitled to compensation.
Though you may not be able to protect your concept entirely, there are certain steps that you can take to either deter someone from taking the idea or making it difficult to replicate.
Steps to help protect your reality concept:
1. Flesh out the concept in as much detail as possible and file it with the US Copyright Office.
2. If possible, try to attach talent to the project that will be hard to duplicate or replace. While the idea may be taken, if you have a properly written agreement with the talent, the talent cannot be poached. Reality concepts that center around a unique personality in a specific position or profession (think Millionaire Match Maker, The Rachel Zoe Project, or Deadliest Catch) will be harder to replicate if the talent is already attached to your project rather than an idea without talent attached or where any host or contestants can fill the positions.
3. Get out of the gates first. If the concept is worth stealing, try to ensure that buying/producing it with you it makes more sense then developing it themselves. In order to do so, attach unique talent (see #2 above), have as many elements together as possible so that recreating everything you have done will take more time, effort and money for the network/production company than working with you. For instance, if the show is about mixed martial arts, have agreements in place with the fighters, coaches, locations, sponsors, etc. Try to present a full package, such that if a network/production company passes on your idea and another party picks it up, they will be too far behind the game to develop the concept themselves. NOTE: you should consult and attorney to ensure that all agreements are properly drafted. An agreement that is not properly drafted can actually have the adverse effect of deterring a network from picking up your show (e.g. if talent is locked in on terms that are not acceptable to the network).
4. Don’t be too rigid with your concept. Developing a proper package can be a bit of a balancing act. You want enough detail such that the elements are closer to being something that can be copyrightable or at lease comparable under the substantially similar test, but not so fleshed out that a buyer cannot conceive of the show in a way that fits with its brand. For example, a reality show about contestants travelling around the world for a grand prize would look very different on MTV then it would on OWN.
5. Where possible, always obtain a signed non-disclosure agreement (“NDA”) from the parties to which you are submitting your content. While an NDA alone will not protect your concept from being taken, it will add one additional piece of ‘evidence’ if you choose to proceed with litigation.
None of this should discourage you from trying to get your reality concept into production. Reality television has boomed in the last ten years and only continues to grow. If you have a great concept, go for it. Taking the steps above and engaging an attorney to help you in the process may benefit you in the long run.