IP Law Daily, COPYRIGHT—S.D.N.Y.: BET copyright lawsuit over ‘House Party’ Instagram Live show dismissed, (Aug 14, 2023)

By George Basharis, J.D.

BET’s pandemic-era Instagram Live show was not similar to a social media concept show featuring an “off-the-hook,” raucous house party.

A lawsuit filed by a production company claiming that Black Entertainment Network (BET) stole its idea for a show to be live streamed on Instagram Live, set at a party in a Manhattan brownstone, and featuring celebrity guest interactions and musical performances, has been dismissed by a federal district court in New York. After the production company pitched an idea for a show entitled “House Party” to BET that would be partially shot from the perspective of a host live-streaming through a smartphone, BET launched its own show entitled “House Party” on Instagram’s live-streaming platform. Although the production company held a valid copyright interest in the show it proposed to BET, the web show produced by BET was not similar enough to support the production company’s copyright claim (Walkie Check Productions, LLC v. ViacomCBS Inc., August 10, 2023, Failla, K.).

Walkie Check Productions owns a registered copyright in treatments for a show entitled “House Party.” The show centered around a “raucous” party located in a New York City apartment featuring a hostess, partygoers, celebrity guests, and musical performances. Segments of the show would follow the hostess as she toured the “off-the-hook” party scene while speaking directly to the audience via livestreaming.

In 2015 Walkie Check executives pitched their idea for House Party to BET and its corporate parent ViacomCBS. Negotiations between the production company and the network broke down, and the network eventually passed on the show. But several years later, BET produced its own show with a similar name. The show launched during the early days of the COVID-19 pandemic as part of Viacom’s social distancing campaign. It featured programming ranging from musical performances to “lifestyle hacks.” The BET show was broadcast over IG Live, the live streaming arm of Instagram.

The production company, believing that the show BET eventually launched in 2020 purloined their treatment, sued the network. The lawsuit alleged infringement of their copyright in the treatment. The network moved to dismiss the complaint.

Spoliation. Walkie Check argued that it was entitled to an adverse inference based on BET’s failure to record various episodes of its series as they were being livestreamed. Of the approximately 90 episodes produced, only 39 had been preserved by BET. BET did have an obligation to record the livestreams. However, even if it did have an obligation to preserve the shows after receiving notice from Walkie Check’s counsel, its failure to do so was negligent. Negligence, the court explained, was insufficient to warrant the remedy sought by the production company.

Copyright infringement. BET did not dispute the validity of Walkie Check’s copyright. Although basic production choices such as the use of specific “selfie-friendly” aspect ratios, home filming environments, and unscripted performances were not protectible, the sum of Walkie Check’s artistic choices constituted a protectible work under copyright law. But while the treatment was entitled to protection, the court found, the show eventually launched by BET did not appear substantially similar.

Walkie Check contended that the overall concept and feel of both works was similar because both works intended to provide a “privileged peek of their secret lairs of their favorite artists and take in private performances and interact with them (and each other) in real time.” However, the “total concept and feel” analysis cannot be used to protect general ideas absent direct copying, the court explained. When considered side-by-side the two shows were not substantially similar. According to the court, the aesthetic decisions that made Walkie Check’s work original were not present in the BET House Party series. The “off-the-hook,” after-party environment of the Walkie Check series featuring “tipsy” A-list celebrities was not present in the BET series. The BET series did not feature busy party scenes, dancing partygoers, or a chatty, “flirty” hostess. The BET performances took place “couch side” before a small number of people. The only elements shared by the shows—selfie-style camera angles, casual environments, musical performances, unscripted format, and livestreaming—were not protectable aesthetic elements.

The case is No. 1:21-cv-01214-KPF.

Attorneys: Kenneth Earl Aldous, Jr. (Aldous PLLC) for Walkie Check Productions, LLC. Wook J. Hwang (Loeb & Loeb LLP) for ViacomCBS Inc., Black Entertainment Television LLC d/b/a Bet Networks and Bet Productions IV, LLC.

Companies: Walkie Check Productions, LLC; ViacomCBS Inc.; Black Entertainment Television LLC d/b/a Bet Networks; Bet Productions IV, LLC

Cases: Copyright NewYorkNews