Thursday, January 17, 2019

reality series "Love at First Flight" doesn't infringe previous web series of same name

Reflex Media, Inc. v. Pilgrim Studios, Inc., No. CV 18-2260-GW(FFMx), 2018 WL 6566561 (C.D. Cal. Aug. 27, 2018)

The court here dismisses trademark/unfair competition and copyright claims against a reality TV show with the same name as Reflex’s earlier YouTube series on the same general idea, “Love at First Flight.”  The copyright claims were dismissed with prejudice, the TM/unfair competition claims without, and Reflex dismissed the entire case thereafter.

In early 2015, Reflex began to develop a reality entertainment series, Love at First Flight. Its coplaintiff Clover8 applied for a federal trademark registration.  “In advertising for the Original Series, it was described as a new web series by travel dating site,, following two ‘singles’ as they go on a ‘destination first date.’” The advertising asked: “Will these singles miss their connection, or will they find Love at First Flight? Watch to find out!”  Reflex cast “individuals with substantial social media audiences.” The first four episodes appeared in August 2015 and are still featured on a YouTube channel and the MissTravel website. Each episode notes in the description that it is part of the Love at First Flight series (using standard font) and features a logo, “LOVE AT FIRST Flight by Miss TRAVEL,” in mixed cursive/block lettering and mixed black/aqua colors.

In late 2015, one of the defendants approached Reflex about adapting the original series for TV. They had various connections to the other defendants, some of whom began to develop the allegedly infringing series.  In late 2016/early 2017, they began to cast people; the casting call was titled “Take A Trip and Meet the Love Of Your Life On FYI Network’s TV Show Love at First Flight.”  Reflex first wanted a piece of the pie and then asked them to use a different name for trademark reasons, but received no response.

Six days after Reflex told the relevant defendants it owned a common law trademark, defendants applied for “LOVE AT FIRST FLIGHT” as an ITU for “[e]ntertainment services in the nature of a television and multimedia program series featuring subjects of general human interest distributed via various platforms across multiple forms of transmission media; providing entertainment information to others via a global computer network.” The filing declarations included a statement of belief that it was entitled to use the mark in commerce and that no one else had that right.

Despite further protests, defendants showed the first episode of their show on March 20, 2018 on Lifetime, owned by A&E, and aired eight total episodes. After the debut of the allegedly Infringing Series and five more times, AfterBuzz TV published a 52 minute video titled, “Love at First Flight Season 1 Episode 1 Review & Reaction,” discussing the allegedly infringing series. To promote the series/the aftershow, defendants (at least AfterBuzz) allegedly used Reflex Media’s logo as its thumbnail image link to the After Show’s live stream and video.

As for the alleged copyright infringement, Reflex alleged that its series

consists of individuals meeting for the first time in-person on multiple-day dates in exotic locations such as Hawaii; Cabo San Lucas, Mexico; Vancouver, Canada; and Costa Rica, and other planned locations to include landlocked cities like Las Vegas. The participants featured in the show are young attractive singles who participate in bonding activities such as: attending a live performance featuring shirtless male dancers, zip lining amongst trees, dinner dates, waterfall activities, boating, paddle water activities, and ocean snorkeling.

It alleged that defendants’ series

similarly consists of multiple-day dates in exotic locations such as Hawaii, Las Vegas, Seattle, and New York City. The participants featured in the Allegedly Infringing Series also are young attractive singles who participate in bonding activities such as: attending a live performance featuring shirtless male dancers, tree climbing using climbing lines, waterfall activities, boating, paddle water activities, and ocean snorkeling.

The complaint also alleged that both sets of series convey a “theme and mood of fun, adventure, and anticipation for the prospect of burgeoning romantic feelings between the participants on the show”  and that defendants “copied the core plot, theme, mood, settings, and characters of the Original Series, including an attempt to use one of Reflex Media’s previously used cast members.” The “theme and mood” of each show allegedly “conveys fun, adventure, and anticipation for the prospect of burgeoning ‘romantic feelings’ between participants.”

Trademark claims: Rogers applies, and Empire tells us there’s no exception for title-on-title claims in the 9th Circuit. (1) Artistic relevance is obviously above zero based on the pleadings, but (2) after the Honey Badger case, the second prong requires more factual analysis and might not be appropriately resolved on a motion to dismiss, even though it requires explicit misleadingness and the relevant question is “whether there was an ‘explicit indication,’ ‘overt claim,’ or ‘explicit misstatement’ that caused ... consumer confusion.” As past precedent establishes, survey evidence demonstrating confusion over endorsement isn’t relevant: “evidence must relate to the nature of the behavior of the identifying material’s user, not the impact of the use.”

Reflex identified three facts that it thought showed explicit misleadingness: (1) both series bear the same name, (2) YouTube shows commingled search results for both series, and (3) AfterBuzz promoted the allegedly infringing series using the Reflex logo. However, the complaint did not allege explicit misleadingness about the content or source of the work. “Plaintiffs’ reference to what essentially amounts to mere use is not enough to satisfy this prong.”  [The relationship between AfterBuzz and the other defendants was not entirely clear. According to the complaint, they "partnered" with AfterBuzz to promote the show. AfterBuzz describes itself as "the digital broadcast network dedicated to producing live and on-demand after-shows, news and coverage for nearly every TV show." Make of that what you will; it sounds like a careless person involved in producing/uploading the video grabbed the wrong image, which I agree is a mistake--among other things, it promoted a website that hadn't paid for the privilege--but probably shouldn't contaminate the rest of the activities at issue.] Dismissed without prejudice.

The copyright claims fared even worse; based both on the allegations and the judicially noticed/intrinsic to the complaint content of the two shows, the court dismissed them with prejudice for failure to satisfy the extrinsic test for substantial similarity.

Plaintiffs argued Ninth Circuit precedent doesn’t allow for dismissal of a copyright claim once the allegations are properly in place, but that’s not true where it’s extrinsic similarity that’s the problem.  
In applying the extrinsic test, courts compare “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.”
Courts filter out “(1) scenes a faire that necessarily result from the choice of a setting or situation; (2) purely utilitarian elements; and (3) elements of expression merged with the underlying idea.” In this analysis, elements that are “similar at the abstract level” but are “markedly different” in their particulars are not substantially similar.

The plots here were very simple (and the allegedly infringing series followed the structure of many other dating reality shows, the existence of which the court took judicial notice).  Defendants’ hour-long series had participants paired off with another person with whom they embark on a 30-day trip across the United States. All eight episodes tracked the same handful of pairs, “with the looming and ultimate question being whether they will ultimately marry the other person.” At each location, they engage in bonding activities and win or lose various challenges, rewarding with either a motel or a luxurious hotel, depending on the outcome. At the finale, the pairs physically go to the wedding altar and decide whether they will marry each other or not.

Reflex’s series had key differences: each 13-minute long episode followed one pair of participants that meet for the first time in mostly foreign destinations. “Among each pair, one person is a social media ‘influencer’ or ‘personality’ with the other participant being a ‘Miss Travel [dating application] user.’” The show mentions Miss Travel throughout and the pair generally stays at high-end vacation rentals. The parties generally go their separate ways at the end of the episode. “In the four episodes presented to the Court, the couples get along with little to no friction,” in contrast to some of the events on the reality show.

The generic elements were similar, but there were no substantial similarities in the plot’s objective details. The court filtered out: (1) casting young attractive singles, (2) filming multiple-day dates in exotic locations, (3) contestants participating in bonding activities, and (4) a theme and mood of fun, adventure, and anticipation for the prospect of burgeoning romantic feelings between the participants on the show. That last generic stock theme/mood  “necessarily flows from the basic generic premise of the shows about participants dating through bonding activities while traveling.” There was no alleged similarity in dialogue, and the settings varied (Reflex generally used large US cities, while the allegedly infringing series was predominantly set outside the US mainland), and even if the settings had been the same/similar, that would still have flowed from the basic premise and constituted non-protectable scenes-a-faire. As for characters, “the participants play themselves. … Though there might be similarities between some of the characters, such as their pursuit of romance or love, those are merely stock character traits and they flow from the basic premise of the series.”  The paces of the series were markedly different—pairs interacted for a short period in the original series, and for 30 days in the allegedly infringing series. The pace of each series flowed naturally from their implementation of the basic plot premise.

Identical titles: here the law wobbles. Titles aren’t protected by copyright, but can “have copyright significance as one factor in establishing whether the substance of plaintiff’s work (not the title) has been copied.” [As circumstantial evidence of copying in fact … okay, I guess, but how it relates to substantial similarity is completely unclear, but it’s the Ninth Circuit.] Despite the title, there’s no substantial similarity between any protectable elements here, so the court dismissed the copyright claim with prejudice.

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