Shull v. TBTF Productions, Inc.

Second Circuit affirms dismissal of copyright claims by author of Market Mind Games against producers of Billions, finding no substantial similarity between book and television series as matter of law.

Plaintiff Denise Shull, an author and professional performance coach, wrote the book Market Mind Games: A Radical Psychology of Investing, Trading, and Risk, 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 involved in 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, among other claims, alleging that Billions is an unauthorized derivative work of Market Mind Games and 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 plaintiff’s copyright infringement claims failed as a matter of law because no substantial similarity existed between Market Mind Games and Billions. (Read our summary of the district court’s decision here.) The court also denied plaintiff’s motion to vacate or set aside the judgment and for leave to file an amended complaint. 

On appeal, plaintiff argued that the district court erred in dismissing the suit because it took judicial notice of facts that were determined via a “quick internet search”—in particular “that there are numerous in-house performance coaches who are currently on Wall Street.” The Second, Circuit, on de novo review, rejected the argument, concluding that even assuming for the sake of argument that the district court had improperly taken judicial notice, it had appropriately concluded that Billions and Market Mind Games were not substantially similar as a matter of law.

Under the Second Circuit’s “more discerning observer” test, which requires the court to assess similarities between only the copyrightable elements of the works (such as concept and feel, themes, characters, plot and setting), the appellate court found, as did the district court, that the two works were not substantially similar. The court determined that the plots and themes of Market Mind Games—“an academic book that draws on fictional stories to illustrate Shull’s ideas”—were wholly dissimilar from those of Billions—“an entirely fictional serial television drama that seeks to portray the drama that lies in the age old trifecta of money, power, and sex.” To the extent that the character of Dr. Wendy Rhoades in Billions has any similarity to the fictionalized version of Shull in Market Mind Games, the court found that these similarities are generalized as to their gender and occupation and therefore not protectable by copyright. 

Similarly, under the “quantitative and qualitative” test, which measures whether, quantitatively, the amount of copied work is “more than de minimis” and whether, qualitatively, the copying concerns expressions rather than ideas, facts or other nonprotectable elements, the court concluded that there was no actionable copying. Any similarities between Rhoades and Shull are not protectable, and the specific scenes that plaintiff pointed to in the complaint as being similar took place in entirely different contexts, “resulting from different traumas and leading to different psychological revelations.”

In reviewing the denial of plaintiff’s post-judgment motions to vacate or set aside the award and for leave to file an amended complaint, the Second Circuit noted that while the Federal Rules of Civil Procedure ordinarily provide that leave to amend be granted freely, these considerations give way to those of finality if the motion to amend comes after judgment is entered, as in this case, and that a district court may properly deny any motion to amend if the proposed amendment is futile. 

While plaintiff’s proposed amendments included new factual allegations and a new claim under the Lanham Act, they did not cure the fundamental deficiency at the heart of the case; after a careful review of the works, the district court, and on appeal, the Second Circuit, determined that Billions and Market Mind Games are not substantially similar as a matter of law, a circumstance that cannot be cured by repleading. Similarly, any Lanham Act claims suffered the same fatal flaw; the works are dissimilar as a matter of law, and therefore there is no viable claim for false endorsement of a mark.

Summary prepared by Melanie Howard and Alex Inman