Wednesday, July 21, 2010

The Whole Shaquille

This recent article regarding a settlement reached in the television show “Shaq Vs.” reminded me about an overlooked element of copyright law by many – an idea is not copyrightable.

The case was filed in a Los Angeles Superior Court and thus, it is unlikely that there was an allegation of copyright infringement. Yet, this is a difficult concept for many to understand but copyright protects the expression of an idea, not the idea itself. 17 U.S.C. Section 102(b).

In the “Shaq Vs.” case, Plaintiff Todd Gallagher sued Endeavor Talent Agency alleging that Plaintiff’s book “Andy Roddick Beat Me with a Frying Pan” was the basis for the “Shaq Vs.” television show. Apparently Gallagher through his talent agency had attempted to “shop” his show to various networks; however, the show moved forward with Shaq (another client of Endeavor) replacing Gallagher.

“Shaq Vs.” features Shaquille O’Neal challenging famous celebrities and sports stars in the field for which they are famous. Examples include boxing against Oscar De La Hoya and beach volleyball against Kerri Walsh and Misty May-Treanor.

Gallagher’s book is based on stories where the author challenged professional athletes where the athletes would face a handicap such as Andy Roddick playing tennis with a frying pan.

While the case was settled out of court, it may be that there were more specific facts or instances that were highly similar (or there may have been a non-disclosure agreement) or bad blood between Gallagher and Endeavor but it seems that the underlying idea may have been taken but this is not copyright infringement.

An idea or broad concept cannot be copyrighted. One of the simplest reasons that this is true is because if every idea could be taken, there would not be any incentive but every new book, television show, etc. would merely be a re-tread of something already done.

In this instance, Gallagher’s book may have provided an idea but there are differences. Clearly, Gallagher’s competitions involved a handicap to the sports professional. “Shaq Vs.” does not always have gimmick handicaps such as using a frying pan for a tennis racket. Also, while Gallagher’s book appears to be sports oriented, “Shaq Vs.” includes such competitions this season as cooking against Rachel Ray and a spelling bee against the National Spelling Bee Champion.

Also, Gallagher’s book could easily be based on other prior ideas such as “Pros v. Joes” (which began in March 2006) which was prior to the publication of Gallagher’s book in October of 2007.

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