IP Law Daily, COPYRIGHT—2d Cir.: Dismissal upheld in copyright claims against Showtime series Billions, (Jul 30, 2021)

By Nicole L. Chaney, J.D.

Market Mind Games book author failed to show Billions stole a character from her work.

Well-known author and professional performance coach, Denise K. Shull, alleged that the performance coach character in Showtime’s Billions was taken from her book Market Mind Games and from her persona without her permission. The federal district court in New York city had dismissed her claims concluding that the characters were not similar enough to constitute an infringement. The infringement analysis failed both the discerning observer test urged by Billions and the quantitative/qualitative approach urged by Shull. The Second Circuit affirmed the district court ruling and denied the author’s post-judgment motion for leave to amend as futile (Shull v. Sorkin, July 19, 2021, per curiam.).

"Quick Internet Search." Shull wrote her book, Market Mind Games: A Radical Psychology of Investing, Trading, and Risk ("Market Mind Games") for The ReThink Group, which owns the copyright. In early 2014, the people working to develop a Showtime series to be called Billions contacted Shull for advice in developing a performance coach character, as they did with other performance coaches. She met with the developers and with the actress who was to play the character. They talked about bringing her in as an on-set performance coach but the relationship was never formalized.

Shull filed claims alleging an unauthorized derivative use of her character, Denise, in the Billions portrayal of its fictional character Dr. Wendy Rhoades. The district court dismissed her claims on grounds that the characters "do not resemble one another in the slightest." Shull argued the district court ruling should be reversed because its conclusion turned on judicial notice by way of a "quick internet search" that "there are numerous in-house performance coaches who are currently on Wall Street."

The Second Circuit disagreed, reasoning that, notwithstanding the judicial notice issue, the copyright infringement claims failed to establish a claim of copyright infringement as a matter of law.

Substantial similarity. In reviewing the lower court’s application of the "more discerning observer" test, the Second Circuit agreed that the elements underlying the copyrighted work’s "total concept and feel, theme, characters, plot, sequence, pace, and setting" were not substantially similar. The similarities between the characters included shared gender and occupation, but those were too general to constitute a protectible interest. The court noted that such "stock similarities" cannot support a character infringement claim.

The court also applied the "quantitative and qualitative" analysis in reaching its conclusion. The quantitative review produced no actionable copying, and the qualitative review turned again on the court’s conclusion that the similarities were ideas too general to warrant copyright protection. While Shull pointed to the similarity in a particular counseling session depicted in both works, the court remained unconvinced, noting that the depictions each involved different context, trauma, and psychological components.

Futility. The court also denied Shull’s request to overturn denial of her post-judgment motion for leave to replead, concluding that the proposed amendments would be futile. She sought amendment to incorporate additional factual allegations in addition to a false endorsement claim under the Lanham Act. The court rejected Shull’s arguments stating that the dissimilarity between the characters was such that there was no question of fact, and as a result, there was no possible way to demonstrate the confusion required to sufficiently state a Lanham Act claim.

The Case is No. 20-3529.

Attorneys: Avram Turkel (Borstein Turkel, PC) for Denise K. Shull. Elizabeth A. Mcnamara (Davis Wright Tremaine LLP) for TBTF Productions, Inc., Showtime Networks Inc. and CBS Corp.

Companies: TBTF Productions, Inc.; Showtime Networks Inc.; CBS Corp.

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