On February 22, 2011, Judge Alvin Hellerstein of the US District Court for the Southern District of New York threw out a copyright infringement suit regarding NBC’s popular reality series The Biggest Loser. See Latimore v. NBC Universal, Inc. et al., 07 Civ. 9338 (AKH) (SDNY Feb. 22, 2011). Among other claims, the plaintiff alleged that the defendants, NBC Universal, Inc. and the production company Reveille, LLC, infringed her four-page treatment for a weight-loss reality competition called “Phat Farm/Fat Farm – A Weight Loss Adventure.” In granting the defendant’s summary judgment motion, Judge Hellerstein found there was no substantial similarity between the protectable elements of the plaintiff’s work and the allegedly infringing The Biggest Loser series.

The plaintiff’s treatment described a weight loss show featuring three distinct phases. During phase one, the contestants arrive at a mansion where they are pampered during a two-day orientation. After being divided into teams, the contestants move to a farm for a weight loss boot camp with regular eliminations for under-performing contestants. During phase two, the contestants move to a “house/cabin” filled with assorted temptations, including fattening foods and television. During this stage, the contestants are judged on an individual basis with continuing eliminations for under performance. Finally, in phase three, the remaining contestants return to the mansion where they are pampered while competing for prizes. In the end, one contestant is crowned the champion.

NBC’s The Biggest Loser is a reality-based weight loss competition involving a 12-week stay at a weight loss ranch. The contestants, who are divided into teams, engage in individual and team competitions and face temptations and eliminations. Each team has a trainer/coach to guide it through the process. In the end, the contestant with the highest overall percentage of weight loss wins $250,000.

To support their successful summary judgment motion, the defendants argued that they did not have access to the plaintiff’s work and therefore could not be guilty of copyright infringement. The plaintiff claimed that she submitted her treatment to an agent at McCreary & Fuller Public Relations Corp., who sent the treatment to NBC. However, that agent provided a sworn declaration and deposition testimony denying this claim. Next, and most significantly, the defendants argued that there was no substantial similarity between the protectable elements of the plaintiff’s work and The Biggest Loser. The defendant’s argued that the only similarities between the two works were the general concept/idea of a weight loss competition and the resulting stock elements and scenes a faire that flow from that concept, none of which are protectable. Finally, the defendant’s presented declarations and deposition testimony proving the independent creation of The Biggest Loser series, which plaintiff failed to rebut.

This is not the first time that NBC has successfully defended The Biggest Loser in a copyright infringement suit. Back in 2008, NBC won a summary judgment motion in the similar case of Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (CD Cal. 2008).

Please contact Anthony V. Lupo or Amy Salomon with any questions.

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Amy E. Salomon
salomon.amy@arentfox.com
202.857.6015