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IP/Entertainment Case Law Updates

Mallery v. NBC Universal, Inc., et al.

The district court granted the defendants’ motion for attorneys’ fees because plaintiffs’ copyright infringement claim against the writers and producers of the television program Heroes was objectively unreasonable.

Plaintiffs claimed that Heroes infringed their copyrights in their 777-page handwritten novel called The Twins: Journey of the Soul, a short film based on the novel, and a series of paintings based on the novel. The plaintiffs’ novel features twins separated in the womb who grow up to have special powers and later marry each other. Other characters in the novel have special powers such as healing and seeing the future, and the novel follows the characters as they travel around the world.

In an earlier decision granting the defendants’ motion for summary judgment, the court wrote that the plaintiff’s “claims are wholly without merit, as nearly every instance of alleged similarity between Heroes and the plaintiffs’ work relates to unprotectable ideas . . . and the total concept and feel of these works are profoundly different.” The court called the plaintiffs’ argument that the works were substantially similar “frivolous, both legally and factually” and noted that failing to award attorney’s fees to the defendants would invite others to bring similarly unreasonable actions without fear of any consequences.

The court gave little weight to the plaintiffs’ unsupported affidavits claiming that they had no money, job, income or financial assets, and awarded the defendants $99,106.45.

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