Reality television show themes and movie plots are among the theatre forming the new platform for the evolving area of state jurisdiction over ‘idea submission’ theft in New York and California courts. Arising from the case in which Jeff Grosso sued Miramax for Miramax’s movie, “Rounders”, the Ninth Circuit held that while Grosso failed to prove copyright infringement and therefore had no standing in federal court, the issue of idea theft was not pre-empted for resolution in state court.

Since the Ninth Circuit ruled in Grosso v. Miramax, there have been many state cases filed by the emboldened plaintiff’s bar in both New York and California.

In California, four Californians sued Fox Broadcasting in July alledging that the reality television show, “So You Think You Can Dance” was stolen from an idea that the four conveyed in a meeting at Fox in 2003. At that meeting, the four individuals told a Fox executive of the idea and agreed to write, produce and direct it. No outline of the idea was written down; no script was written; no contract was signed; no confirming letter was sent; and no copyright application was filed.

In New York, two cases were filed this summer. The first is a suit against Warner Brothers filed by and author, Matthew Benay, for stealing the idea for the movie, “Samurai”. The second is a suit against NBC by author, Maurice Fraser, who claims to have pitched a reality television show theme and idea which was not acknowledged or paid for, but which is about to be released in the fall show, “World Vision: An American Anthem”.

These Californian and New York plaintiffs are optimistic that their claims of idea theft will fare better than Grosso’s. This month, the California Court threw out Grosso’s state case that “Rounders” was stolen from Grosso’s script, “Shell Game”.

Adding to the complexity, the standards for which ideas and under which contextual circumstances idea theft may be actionable vary widely between New York and California law. Which means that reality television is likely to spawn more litigation as ‘reality’ and television seem to be increasingly entwined.

Although Smack Apparel has been selling colleagiate t-shirt parodies since 1989, the absence of authorizing licenses was not a business oversight. Smack Apparel proudly announces on its website, “Licensed ONLY by the First Amendment” when it uses colors, fonts and near verbatim phrasing of popular college imprimaturs at www.smackapparel.com.

For Duke University – Puke

For Louisiana State – Bourbon Street or Bust

Colleagiate Licensing together with seven schools ( Louisiana University, University of Oklahoma, University of Southern California among them) sued Smack Apparel alledging trademark infringement by school color appropriation.

U.S. District Judge Mary Ann Lemmon of the Eastern District of Louisiana granted summary judgement in favor of Plaintiffs and finding trademark infringement for defendant’s color misappropriation.

Counsel for Plaintiff, Collegiate Licensing, commented that such infringement as that of Smack Apparel, amounted to an estimated detour of over three (3) billion dollars in retail collegiate merchandise which denies the schools of scholarship and endowment monies.

Board of Supervisos of the Louisiana State University et al v. Smack Apparel 04-1593 (2006) E.D. Louisiana.