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On Thursday, a California federal judge offered a sequel of sorts to a case brought by the actress who performed in Innocence of Muslims and, upon international outrage, attempted to assert a copyright interest and have YouTube restrained from distributing it. The same lessons from that 2015 ruling in the 9th Circuit Court of Appeals apply to reality television, and specifically to the two stars of the TLC series The Little Couple who allege being the victims of fraud.
For the past 18 months, Discovery Communications has been waging a war with LMNO, once one of the top producers of its programming. In the midst of the dispute, Bill Klein and Dr. Jennifer Arnold, the married couple featured on Little Couple, stepped forward to allege that they were robbed of contingent compensation from the series through fraudulent accounting. Among their demands is to rescind the 2008 deal in which they conveyed intellectual property rights and recover rights to the show.
When Klein and Arnold got word that Discovery and LMNO were prepared to settle with each other, they applied for a temporary restraining order to prevent LMNO from transferring the IP rights underlying Little Couple to LMNO.
“With a dismissal by LMNO, Discovery will no longer be a party to this litigation,” stated the couple’s application. “LMNO will then face trial by [Klein and Arnold] but will be left holding an empty bag, with nothing left for Plaintiff-Intervenors to recover.”
That’s not enough for U.S. District Judge John Kronstadt, who on Thursday rejected a TRO with the finding that Klein and Arnold were unlikely to prevail on their claim that they own certain intellectual property rights in the show they star in.
“As Discovery concedes in its opposition, it is not disputed that Intervenors‘ contribution to The Little Couple is critically important to the success of the program,’ nor is it disputed that ‘they should be fairly compensated’ for the work they did,” writes Kronstadt. “That a party may be entitled to such compensation does not provide a basis to establish the ownership of a copyright in the program. Intervenors have submitted no evidence to support the claim that they actually ‘translate[d]’ their performances ‘into a fixed, tangible expression,’ which is one required element of a viable copyright claim.”
In the ruling (read here in full), the judge then pulls more wisdom from the case involving Cindy Lee Garcia, the Innocence of Muslims actress.
“In Garcia, an actor sought to enjoin Google from hosting on its websites a film in which she appeared,” writes Kronstadt. “The basis for the requested relief was that she owned the copyright in her performance. Garcia rejected this theory, distinguishing ‘substantial creative contribution[s],’ which, in the context of film and television, are made by many individuals, from qualification as an ‘author’ under the Copyright Act. … The evidence presented supports a claim that [Klein and Arnold] made significant contributions to the Program. However, such efforts have not been shown to constitute authorship under the Copyright Act.”
The judge later adds that the two would be unlikely to succeed in ripping up their old contract with producers.
Klein and Arnold “have alleged that LMNO engaged in a fraudulent scheme to misstate the licensing and other revenues associated with the Program,” writes Kronstadt. “They also allege that LMNO did so as part of its actions designed to withhold from Intervenors the funds to which they were allegedly entitled under the 2008 Option Agreement. Although these allegations are sufficient to state a claim for breach of contract, they are insufficient to establish that the relevant contracts were fraudulently induced to support a claim for rescission.”
As such, the judge allows LMNO and Discovery to enter into a settlement agreement that transfers IP rights. The two reality TV stars are still free to pursue LMNO for monetary damages and even assert a claim against Discovery, if they wish.
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