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IP/Entertainment Case Law Updates

Kessler v. Duffer

In breach of implied-in-fact contract suit brought against creators of Netflix’s Stranger Things, California Superior Court denies defendants’ motion for summary judgment, finding insufficient evidence that defendants created Stranger Things before meeting with plaintiff, and issues of fact as to whether the parties reached agreement during that meeting.

Writer Charlie Kessler brought a breach of implied-in-fact contract claim against Matt and Ross Duffer, creators of the acclaimed Netflix series Stranger Things, alleging that the Duffers stole the idea for their hit show after meeting with him. Kessler asserted that he created Montauk, a short film about psychological experiments and paranormal activity based in Montauk, New York, in 2012, and that he shared the concepts for the film with the Duffers during a party in 2014. The Duffers acknowledged in their moving papers that the early working title for Stranger Things was Montauk, but they asserted that they had been researching and formulating ideas for the show since 2010 — at least two years before they met Kessler.

The court, however, held that beyond the Duffers’ own declarations of independent creation, there was “little independent verifying evidence of the originality of their idea.” According to the court, determining the credibility of each side’s declarations and an assessment of the similarities between the works were issues for the trier of fact, which precluded summary judgment.

The Duffers argued that the applicable law was that of New York, which allegedly requires that an idea be original in order to support an idea submission claim. The court found that novelty was not a requirement under New York law, however, and that, as a result, no conflict existed between California and New York law.

The court also rejected the Duffers’ argument that the California Court of Appeal’s 1979 decision in Faris v. Enberg required a finding that their conversation with Kessler during the 2014 party did not amount to an implied-in-fact contract. The court found Faris inapplicable because the plaintiff in that case offered no evidence that his submission was an offer for a sale. In contrast, Kessler “contemplated commercial exploitation and profitability” in his discussions with the Duffers, according to the court.

In a subsequent order after a hearing on the issue, the court bifurcated the trial into separate liability and damages phases, reasoning that the damages phase would involve far more evidence than the liability phase, and was potentially unnecessary.

Summary prepared by Tal Dickstein and Camron Dowlatshahi

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