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IP/Entertainment Case Law Updates

Shull v. TBTF Productions

District court dismisses copyright and related claims brought against creators of television show Billions, finding no substantial similarity between plaintiffs’ book about performance coaching for hedge funds and defendants’ television series. 

Plaintiff Denise Shull, an author and professional performance coach, wrote the book Market Mind Games, which describes Shull’s “experience advising financial professionals, hedge fund managers and Wall Street employees” based on her “insights into the psychology of hedge fund traders.” The book uses a fictionalized hedge fund setting and characters to explain Shull’s fields of study. 

Schull sued defendants TBTF Productions Inc., Showtime Networks Inc. and CBS Corporation, as well as various individuals, based on the television show Billions, a fictional series that centers on the fictional hedge fund Axe Capital, at which Dr. Wendy Rhoades serves as the in-house psychiatrist and performance coach. Schull asserted claims for copyright infringement, trademark infringement, violations of the New York right of privacy statute and other related state law claims, alleging that the Wendy Rhoades character infringes Shull’s portrayal of herself in Market Mind Games, among other alleged examples of copying. The district court granted defendants’ motion to dismiss, finding that plaintiffs’ copyright infringement claims failed as a matter of law because no substantial similarity existed between Market Mind Games and Billions. The court also dismissed Schull’s remaining claims as either preempted by the Copyright Act or failing on their own merits. 

The district court assessed plaintiffs’ copyright infringement claims under two analytical frameworks: the “discerning” observer test and the quantitative/qualitative approach. Turning first to the discerning observer test, in which the unprotectable elements of the works are ignored, the court assessed the similarities between Market Mind Games and Billions “in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting.” The court determined that the works “do not seem to resemble each other in the least” because “[p]laintiffs’ work is an academic work which interweaves fiction to better help the reader understand Shull’s ideas, while [d]efendants’ work is a television show … to demonstrate the drama that lies in the age old trifecta of money, power, and sex.” Even in comparing certain fictional elements of Market Mind Game to Billions, the court held that the works were wholly dissimilar.

The district court then assessed plaintiffs’ alleged examples of copying under the qualitative/quantitative approach, in which a court may consider “the amount of copying not only of direct quotations and close paraphrasing, but also of all other protectable expression in the original work.” Evaluating plaintiffs’ claims that Dr. Wendy Rhoades from Billions infringes Shull’s portrayal of herself in Market Mind Games, the court opined that “[a]lthough Shull is well known in the performance coaching world, it cannot be said that she can copyright the idea of a female in-house performance coach.” More fundamentally, the court found that the “characters” of Denise and Wendy “do not resemble one another in the slightest,” as “Denise explains her mathematical and scientific concepts through fictionalized lectures and workshops,” whereas Wendy is depicted through “repeated dealings with the at times overly dominant Axe Capital employees.” Noting that Wendy is a developed persona on Billions, the court found that, by contrast, Denise’s identity — “what she likes, her home life, friends, and family” — is not developed in Shull’s book.

Next, the district court rejected plaintiffs’ claim that Billions infringes the term “alpha” as it is used in Market Mind Games. The court determined that the word “alpha” “is quite common and regularly used generally,” that Shull’s definition of alpha — “exceptional performance” — “is general in nature, and closely aligns with the connotation of the word alpha as regularly used,” and that even if defendants had copied the word “alpha” as used by Shull, their copying was de minimis in light of the common use of the word. Finally, the court assessed plaintiffs’ claim that a scene in Billions copies a scenario from Market Mind Game in which Shull’s fictional persona walks her hedge fund manager client through the aftermath of a bad trade. The court found that “[b]oth Denise and Wendy coach their clients on a bad trade, but bad trades are surely conventional in the world of finance, and particularly hedge funds.” Not only did Denise’s and Wendy’s words differ when counseling their respective clients on their bad trades, but the backdrops of the bad trades also differed significantly: The client in Shull’s book “is overwhelmed by his brother’s accident and the fact that he, and he alone, understands his positions at work,” while Axe in Billions “has the ability to make a good trade, but consciously chooses not to in an effort to seek retribution against himself for his friend.” 

As for plaintiffs’ remaining examples of alleged copying — one involving the concept of eating, sleeping and exercising to perform well — the court found that these were unprotectable scènes à faire. The court accordingly dismissed plaintiffs’ copyright infringement claims, along with plaintiffs’ vicarious and contributory copyright infringement claims.

Turning to plaintiffs’ remaining claims, the district court dismissed plaintiffs’ Lanham Act claim because plaintiffs failed to plead the existence of any trademark or allege any facts suggesting that defendants infringed any trademark. Plaintiffs’ claims of unfair competition, deceptive business practices and lack of accounting under New York common law were preempted by the Copyright Act because plaintiffs failed to plead any facts independent of those pleaded in support of plaintiffs’ copyright claims.

Finally, the court determined that plaintiffs’ remaining state law claims for implied-in-fact contract, statutory right of privacy and unjust enrichment failed on the merits. Plaintiffs’ implied-in-fact contract claim failed because the facts as alleged in the complaint “do not suggest that there was a mutual understanding between the parties that Shull would be brought on in any official capacity for Billions.” Because plaintiffs failed to plead that defendants had made any promises to compensate Shull, plaintiffs’ unjust enrichment claims failed as well. The court dismissed Shull’s statutory right of privacy claim because the complaint failed to allege that any articles written by defendants used Shull’s name, picture or persona without her permission in order to advertise for Billions

Finally, the court denied defendants’ request for attorneys’ fees, finding that plaintiffs’ claims were not sufficiently frivolous to warrant an imposition of attorneys’ fees and costs.

Summary prepared by Wook Hwang and Sara Slavin.