A&E's (c) and TM claims survive against former producer's new version of cop show

A&E Television Networks, LLC v. Big Fish Entertainment, LLC, 2023 WL 4053871, No. 22 Civ. 7411 (KPF) (S.D.N.Y. Jun. 16, 2023)

The court refused to dismiss copyright and trademark claims based on copying of a TV show format, including the hosts.

A&E owns a trademark (for entertainment services) and registered copyrights for Live PD, “which for four years featured live feeds of law enforcement activity across America, along with live narration and commentary from host Dan Abrams and others.” It developed the show with Big Fish, but the parties agreed that A&E would have exclusive ownership of the rights in Live PD. “In 2020, as America reckoned with police brutality after the death of George Floyd, the show was taken off the air.”

Two years later, defendants launched “On Patrol: Live,” which was allegedly virtually identical to Live PD.

The complaint alleged that Live PD

followed several police departments from across the country in real time as they patrolled their communities, while hosts Dan Abrams, Sergeant Sean “Sticks” Larkin, and a third host, discussed the footage from a studio. This type of documentary-style series — combining carefully selected live footage from cameras mounted on police dashboards with in-studio commentary — was the first and only series to feature the work of law enforcement in real time over a sustained period.

Slicing the numbers: Live PD was the number one program (excluding sports programs) in the key demographic of adults aged 25-54 twenty-eight times in 2018; was the most watched program on ad-supported cable television during prime time on Friday and Saturday nights in 2019; and rose to among the top spots in all of cable, drawing approximately three million viewers per weekend in 2020. A&E also greenlit spinoffs: Live PD: Rewind, Live PD: Police Patrol, Live PD: Roll Call, Live PD Presents: Women on Patrol, Live PD Presents: PD Cam, Live Rescue, Live PD Presents: Top Ten Police Vehicles, and Live PD: Wanted.

Defendants allegedly launched an ad blitz proclaiming “the return,” “relaunch,” and “revival” of Live PD on REELZ, a competitor network to A&E. On Patrol: Live used the same two hosts and also features Curtis Wilson, who previously featured as a contributor on Live PD. REELZ allegedly told advertisers that the “working title” of the show was “PD Live,” and went so far as to announce that “REELZ ADDS #1 TV SHOW TO OUR PROGRAMS LINEUP” with “ALL NEW LIVE EPISODES.” A&E alleged that the new title “On Patrol: Live” was already associated with the Live PD spinoff Live PD: Police Patrol.

On June 8, 2022, multiple articles were allegedly released announcing — erroneously — that Live PD was making its return on REELZ, including a Wall Street Journal article declaring “Live PD is coming back this summer as ‘On Patrol: Live’ ” and an Atlanta Journal-Constitution article proclaiming that Live PD would “soon be live once again” as On Patrol: Live on the REELZ network. Former Live PD host and current On Patrol: Live host and executive producer Dan Abrams tweeted “somewhat misleadingly” on that day that “Live PD is coming back” while thanking “the #livepdnation” for its “patience.” One month later, he announced a promotional tour for On Patrol: Live in a manner that allegedly suggested a continuation of the Live PD series, noting that it was “hard to believe we are almost back!!” and linked a New York Post article stating that “Live PD [was] back as On Patrol: Live two years after being canceled”

An executive producer of both shows allegedly perpetuated the continuation theory by telling Entertainment Weekly that REELZ believed in the Live PD show in its original format and did not seek to bring it back in a completely different manner. REELZ’s official Twitter account retweeted the various articles discussed above and issued a press release announcing the purportedly “new” series “from the producers of Live PD,” and quoting Abrams as being “thrilled” that the “team is finally back together.” A Facebook fan page with nearly 137,000 members changed its name from “A&E LIVE PD” to “Reelz — On Patrol Live.”

The new show was allegedly “virtually indistinguishable from Live PD,” following police and sheriff’s departments in real time across the country (including some of the same departments previously featured on Live PD), while the hosts (described above) comment on the action from a studio. 

Media critics allegedly readily observed that the new show was “a clone of A&E’s Live PD,” and that “On Patrol: Live is Live PD.” Fan reactions on social media included “Ok. I’m confused. Is Live PD back on the air? If so, how do I watch?”; “Dan Abrams really got Live PD back on the air disguised under a new name and on a new channel.”; “Watching Live PD. Yeah, yeah ok. On Patrol whatever! @danabrams, this is the best Friday night in years! Glad to have you back!”; “So awesome to be spending Friday & Saturday nights watching Live PD again. I missed it!” (Query: what percentage of social media comments about On Patrol: Live does this represent? Is that a good measure of confusion? Confusion about what, exactly?)

The new show was a hit for REELZ.

Copyright: infringement can occur when someone else  copies “the author’s original contributions” to the subject work — that is, “the original way in which the author has ‘selected, coordinated, and arranged’ the elements of his or her work,” even if those elements, standing on their own, are not protectable. (So, one thing that distinguishes this case from several other plaintiff-sues-original-author cases like Fogerty v. Fantasy is that the creators are part of a corporation and so the work began life as work for hire. Nonetheless, it doesn’t seem that shocking that people who made a work before will do something similar when hired to make another. The key question is, of course, how far copyright will go to interfere with that artistic continuity.)

At this stage, the court held that Live PD was comprised of original expressions of non-protectable elements, and applied the more discerning ordinary observer test. Unprotectable elements/scènes à faire: the idea of an unscripted police show is not itself copyrightable, police department footage, disclaimer banners, segments about missing children or wanted lists, a three-host format, a view toggling between live footage and in-studio hosts, and red and blue lights.

Of note, the court declined to find that the show’s “Missing” segment, “Wanted” segment, and “Crime of the Week” segment, along with the show’s segments before and after commercial breaks, were copyrightable in themselves. “In light of the thin degree of originality that inheres in Live PD as a whole, the Court will not find that each segment, on its own, is entitled to similar protection.”

Nonetheless, A&E successfully alleged infringement of its thin copyright: “Plaintiff and Defendants are uniquely situated in that the two shows are nearly identical and use the same creative arrangement of the same hosts, lighting, guests, camera angles, screen toggling, and other stock elements, and it is that combination of identical elements that creates two works that are virtually indistinguishable.”

The following similarities, taken together, plausibly alleged infringement:

• Both shows begin with nearly-identical percussive, fast-paced music playing while a black screen displays an introductory disclaimer in white letters with nearly identical language, and such music and display appears each time the show returns from commercial;

• Both shows toggle between footage of live or pre-packaged police patrol action and studio commentary by the show’s hosts discussing the unfolding action;

• Dan Abrams is the primary host, and Sgt. Larkin the co-host, of both shows;

• Each show features a third host, which, for On Patrol: Live is Deputy Sheriff Curtis Wilson of the Richland County Police Department, a former recurring participant on multiple episodes of Live PD;

• In both shows, the three hosts are dressed similarly and situated around a table with Abrams on the left, Larkin in the middle, and the third host on the right;

 

• The studio in which the hosts sit features large TV screens on the walls and blue and red lights behind the screens;

• Abrams narrates the action on screen in both shows and uses the exact same catchphrases such as “What’s the theory here?” and “Let’s take a good look at [the missing person]”;

• Both shows feature several of the same law enforcement departments and On Patrol: Live even brings back some of the same individual officers from those counties;

• Both shows include “Crime of the Week” and “Missing” segments, with the latter segments for both shows cutting to Angeline Hartmann of the National Center for Missing and Exploited Children for a description of the circumstances behind the missing person;

 

• Both shows include a segment featuring footage of a previously committed crime while one of the hosts explains the crime and describes the suspect for whom police officers are looking;

• Both shows display the location of the law enforcement action in a rectangular box at the lower left-hand corner of the screen and, when officers speak to the camera, the shows both flash the officer’s name and department;

• Both shows feature descriptions of the events in the lower left-hand corner (e.g., “traffic stop”) with the location of the event beneath the description;

 

• Both shows display the exact same “earlier in” tagline on the top corner of the screen when airing pre-recorded footage;

• Both shows at times utilize dual screens, particularly during car chases, with footage of the road displayed in a larger screen in the upper-right-hand corner and middle of the TV screen and a smaller, overlapping screen in the lower-left-hand corner displaying the officer in the car;

• When introducing footage for the first time from a specific location, both shows display a similar U.S. map on the screen that shows the viewer where the event is taking place;

• Both shows also use the same or nearly identical camera angles, motion theory (i.e., how the graphics are zoomed in and out), process to settle on and highlight a location, and palette when featuring the U.S. map (including color choices, how the colors are used, and the relationship between the chosen colors);

• Both shows use strikingly similar logos that draw on the same marks and iconographies;

• When transitioning from one location to another, both shows first flash a screen with the city or county and state of the second location before cutting to law enforcement footage;

• Both shows end virtually identically, with footage of law enforcement action playing in a rectangular box in the middle of the screen while the credits flash beneath the footage in white letters and police lights flash on dark pavement in the background; and

• The time slots (and thus the time period covered by the live action) of both shows are the same — 9:00 p.m. to 12:00 a.m. on Friday and Saturday nights. [Um, is that even something you can count in copyright? I’m dubious about whether airtime is an element of the work. Although the court is quite careful, this does seem to be TM/market analysis creeping into copyright.]

The court found that this situation “presents the rare instance of ‘very close copying’ of Plaintiff’s original expression of elements that is nearly indistinguishable from the infringing work.” None of the elements alone would suffice, but the total look & feel was the same. Although “one cannot own a copyright in an individual, like host Dan Abrams … the Court may consider a host’s identity as part of the substantial similarity analysis. Thus the relevant inquiry is not the fact that Dan Abrams and Sgt. Larkin appear in both shows, but rather that they are used in the same fashion, around virtually identical desks with virtually identical mugs, and surrounded by nearly all of the same elements across both works.”

Big Fish didn’t identify sufficient differences to avoid infringement—the hosts wore suits on Live PD while they wore polo shirts on On Patrol: Live; they didn’t always sit in the same positions; and the textual iconographies of “Crime of the Week” differed. “A slight change of clothes, fonts, or seat positions does not engender substantial enough differences to stop an average lay observer from recognizing that the work, assessed as a whole, was copied from Plaintiff’s work, even if the individual segments on their own are not substantially similar.”

Other cases rejecting infringement claims involved “substantial differences” in “concept, feel, and theme.” E.g., American Runway was distinguishable from Project Runway because, inter alia, American Runway “is much more populist and inclusive; the viewer has a powerful voice in the outcome of the show, and the program caters to engaging the fashion sensibilities of its ‘real American’ audience.”

Trademark/unfair competition: A&E smartly relied on its LIVE PD registered trademark, rather than any elements of the show, which would create serious Dastar/functionality problems. It successfully pled confusion based on the facts about the pre-launch and post-launch advertising/social media reactions alleged above. A&E plausibly pled that its mark was strong. On similarity, the court declined to consider the working title PD Live; there was no authority that advertisers should be treated as consumers for purposes of likely confusion, and there was no evidence that they were confused or confusable consumers.

“LIVE PD and On Patrol: Live are plainly dissimilar,” and “that the two share the word ‘Live’ is insufficient, on the facts alleged in the Complaint, to suggest that a consumer would plausibly confuse the two.” Indeed, A&E itself argued that defendants “deliberately fostered the misperception that On Patrol: Live was a continuation of Live PD by repeatedly using the LIVE PD mark to promote their new show,” suggesting that it didn’t think that consumers would confuse the two standing on their own. So too with “patrol.” “Both On Patrol: Live and Live PD: Police Patrol feature the words ‘live’ and ‘patrol,’ but these words are commonplace in describing the activity of police departments and a show with live action. On this record, the Court does not find that such marks, without any indication as to the two marks’ shared appearance or other contextual factors, would be likely to confuse customers as to the nature of the mark.”

Competitive proximity: Though the two shows never aired on cable simultaneously, both parties’ YouTube channels feature clips related to their respective shows. So they’re in the same online video market.

Anecdotal evidence of actual confusion on social media was also alleged. (Was the source of the confusion the use of the name, or the use of elements for which A&E lacks trademark protection? The court notes that the tweets were not dispositive, but still found that they weighed in A&E’s favor at this stage.)

Bad faith was plausibly alleged. Defendants plausibly used the LIVE PD mark to exploit the show’s good will and reputation, including by REELZ’s retweeting of various articles and headlines informing the public that Live PD would be “returning” on REELZ and issuing a press release touting the series as the “de facto” successor to Live PD. The quotes from Dan Abrams in its press release that he was “thrilled” that the “team is finally back together,” when viewed in conjunction with Abrams’s repeated tweets about Live PD’s supposed return, suggested that defendants were “capitalizing on Live PD’s reputation and recognition (and that of its host) for their own gain.” (But does “that of its host” have a separate TM existence, and what should future employers be able to say about the host? I think the court expects nominative fair use to take care of this, and that’s plenty defensible.) It was exploiting the goodwill and reputation of Live PD to tell advertisers that “REELZ ADDS #1 TV SHOW TO OUR PROGRAMS LINEUP” with “ALL NEW LIVE EPISODES” (id. ¶¶ 48, 131), and making no effort to distinguish the two shows. (Suppose all the REELZ promotions said "a new show from the producers and stars of Live PD." Sufficient to avoid a problem? Does REELZ have to avoid retweeting anyone who doesn't include that detail? Are the retweets a plausible source of causation of confusion?)

What about nominative fair use? In the Second Circuit, you add the factors to the Polaroid factors and weigh them somehow. It’s true that you can’t reasonably talk about the new work from the producers of Live PD without saying that, so this factor weighed in favor of nominative fair use. But A&E plausibly alleged that defendants used too much, making the LIVE PD mark the “centerpiece of their deceptive marketing campaign.” Defendants responded that A&E’s claims centered around third-party articles and retweets that they promoted, rather than their own words. Defendants’ only alleged statements regarding Live PD were in a press release, wherein REELZ announced the “new” series as “from the producers of Live PD.” The court noted defendants’ point, but, “at least at the motion to dismiss stage, Defendants’ retweets — i.e., their public endorsements — of news articles claiming that Live PD was making its return, and REELZ’s press release quoting Dan Abrams’s statement that he was ‘thrilled’ the ‘team is finally back together’ (especially in light of Abrams’s continued tweets indicating that the Live PD show was back), were unnecessary to identify the new show, and therefore excessive for purposes of this factor.”

So too with the third NFU factor. It was plausible that defendants acted "willfully and intentionally to confuse the public as to the affiliation and sponsorship of the work.”