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IP/Entertainment Case Law Updates

Silas v. Home Box Office, Inc.

District court dismisses copyright infringement claim against creators of HBO’s television show “Ballers,” finding no substantial similarity between HBO’s show about retired football player who advises current players on managing their finances and plaintiffs’ screenplay and treatment of a dark drama about football player who owns nightclub filled with illegal payoffs, sex, violence and drugs. 

Everette Silas and Sherri Littleton created a trailer, screenplay and treatment of a proposed movie titled “Off Season,” which follows a “washed up” pro football player who is also the owner of an illicit nightclub. Plaintiffs sued the creators of the television show “Ballers” — Home Box Office Inc., 7 Bucks Entertainment Inc., Leverage Management Inc., Dwayne Johnson, Mark Wahlberg and Stephen Levinson — for copyright infringement. “Ballers” is an HBO series about a retired NFL linebacker who works for a financial management company where he counsels young players not to squander their earnings as he did. After comparing the protectable elements of the two works, the district court granted the defendants’ motion to dismiss, concluding the works are not substantially similar.

As an initial matter, the district court rejected plaintiffs’ argument that it should only consider the “Ballers” script — and not the television series as a whole — in deciding the motion. The district court also declined to take judicial notice of other elements outside of the complaint, including the fact that prior works about “the off-field lifestyles of professional football players” often contain references to “cocky football players driving flashy sports cars” and “hip-hop music.” The district court pointed out that these elements are “not verified simply by watching television for any length of time.” It also declined to take judicial notice that variations of the name “Ann” are common in works of entertainment.

Because defendants’ motion did not dispute access or intrinsic similarity, the district court focused its analysis on the extrinsic similarity test, noting that courts must compare “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between major characters.” Because it was undisputed that the defendants had access to the “Off Season” trailer, screenplay and treatment, the district court applied the inverse-ratio rule, which requires a lower degree of similarity where there is a high degree of access.

The district court compared the protectable elements of “Off Season” and “Ballers,” focusing on plot, setting, characters, theme, mood, dialogue and pace. It determined that the actual similarities are between unprotectable elements, such as basic plot ideas and scenes-a-faire, and that the protectable elements of the works are significantly different. Plaintiffs alleged “generic similarities” in plot — for example, that both works follow an African-American football player who is also a businessman and who “monetizes” his friendships with and “mentors” other players. But, even assuming these elements are protectable, plaintiffs’ allegations misrepresented the works, according to the district court. The protagonist in “Ballers” is a retired — not active — football player, and is an employee at a wealth management group, not the owner of a nightclub, as in “Off Season.” Moreover, the ways in which the two characters “monetize” their friendships are significantly different. While the main character in “Ballers” provides financial guidance to young players, the character in “Off Season” is “more of a friend than a mentor” and promotes drug use and prostitution in his club.

With respect to setting, the district court held the fact that both shows are set in Miami is not copyrightable. While “Ballers” features “a wide variety of settings, ranging from financial offices, to practice fields, to fancy restaurants,” “Off Season” takes place primarily in “The Off Season” nightclub. The fact that both shows are set during the professional football “off season” is a generic story idea that is not copyrightable, it added.

The district court also analyzed alleged similarities between various characters in the works, noting that only “sufficiently delineated” and “especially distinctive” characters with both physical and conceptual qualities are copyrightable, and that courts “require a very high degree of similarity between characters” to satisfy the substantial similarity test. It concluded that, although several characters in “Off Season” are copyrightable, the plaintiffs failed to allege that they are substantially similar to any of the characters in “Ballers.” For example, while the main character in “Ballers” is a retired defensive player who suffered a head injury, the main character in “Off Season” is an active quarterback who suffered knee and elbow injuries. While the “Ballers” character is terrified that he may have lingering brain injuries, the “Off Season” character “appears to think he is invincible,” added the district court.

The plaintiffs failed to allege that either work has a theme (an “overarching message or underlying meaning”), the district court pointed out. It also concluded that the mood of the works is not substantially similar. While “Ballers” is a comedic drama, “Off Season” is a dark drama, set primarily at night and “replete with examples of unredeemed moral corruption.” The one similarity in dialogue (a discussion of Kobe Bryant’s cheating scandal) was “merely a similar reference to a highly publicized event,” said the district court.

As for pace, the district court rejected the plaintiffs’ argument that the works are similar merely because they both take place during the course of the football off-season, reasoning that a pace flowing “necessarily or naturally from a basic plot premise,” such as football players’ lives during the off-season, cannot support a finding of infringement. Moreover, while “Off Season” contains frequent flashbacks explaining the characters’ relationships, “Ballers” features only the main character’s recurring nightmare of his career-ending hit during a game. The district court also rejected the plaintiffs’ allegations of similarities in the titles and opening credits of the works. It pointed out that titles are not protected by copyright law, and, in any event, the title of “Ballers” is not identical to one episode of “Off Season” titled “The Ballers Ball,” and the opening credits of the works are “vastly dissimilar” upon close analysis.

Citing the Ninth Circuit’s opinion in Metcalf v. Bochco, the district court rejected the plaintiffs’ argument that their claims pass the extrinsic test based on a “totality of similarities,” because “Ballers” and “Off Season” contain significant differences. Further, “there is no common pattern from which the works’ generic similarities arise,” it added.

The district court dismissed the complaint with prejudice, holding that in the copyright context, when a plaintiff is unable to show substantial similarity, a court may dismiss the complaint without leave to amend.

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