Poor Howard: Does the Stern Show own its game show ideas?

game show hostI was flipping through channels last week and I stopped on Leno (only by accident, I’m a Letterman fan) and saw him quizzing three hot girls from a model reality show who were unable to answer even really easy questions (e.g., who was the first man to orbit the earth, can you identify a picture of Hillary Clinton).

The second I saw this game show I thought of Howard Stern. I’m a huge fan of Howard’s – have been since I saw Private Parts – and I’ve listened to him obsessively ever since he moved to satellite radio. Howard has many gripes, of course. It’s part of his charm. But one complaint I’ve heard him repeat several times is that people are always stealing his ideas and making money off of them.

When Robin and others ask him why he doesn’t sue, he says his lawyers tell him he won’t win. Are they right? Take the Leno game show as an example. Howard’s been doing a version of that (usually involving porn stars instead of reality-show models) for ages. He calls his show “Dumber than a box of rocks.” And once again it involves asking hot girls very easy questions (e.g., what does the D.C. in Washington, DC stand for) that they can’t answer. The idea is clearly the same (it’s apparently funny to watch hot girls show how dumb they are), but does that mean Howard could sue Jay? Probably not. Copyright law protects “the definite expression of ideas but not the ideas themselves.” See TMTV, Corp. v. Mass Productions, Inc., 645 F.3d 464, 469 (1st Cir. 2011). Other plaintiffs who have tried to sue those who have stolen their game show concept have lost because of that basic copyright principle. For example, in McSmith v. Poker Productions, 2011 WL 1838067, at *1 (D.Nev. 2011), the court dismissed a plaintiff who argued that the defendant had taken his game show concept and idea. But the court held that such ideas and concepts are not protectable under copyright law.

So Howard would have to show that not only did Jay Leno steal the idea of his game show, but that Jay also stole specific unique elements of his show (like the fact that the girls had to say “I’m dumber than a box of rocks” if they couldn’t answer questions correctly). Only then would he have a shot at suing Leno for copyright infringement. Until then, he’ll just have to keep on Leno bashing – and coming up with new games and contests. Baba Booey to y’all!

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).