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Court Dismisses Author’s Claim That TV Series Billions Copied Her Work

No Substantial Similarity Under Any Applicable Test

By Jamie Raghu

On New Year's Eve, December 31, 2018, professional performance coach and author of the book Market Mind Games, Denise Shull, filed an action against the creators of the hit premium television series Billions and the exhibitor of the series, SHOWTIME, alleging "that Defendants improperly appropriated ... Plaintiffs' copyrighted work, Market Mind Games, as well as Shull's style and persona without permission, compensation, or remuneration, in violation of the Copyright Act" and other state and federal claims. Shull v TBTF Productions Inc., 18 CIV. 12400 (GBD), 2019 WL 5287923, at *1 (S.D.N.Y. Oct. 4, 2019). Judge Daniels of the Southern District of New York disagreed and dismissed the action with prejudice, noting that "[t]he problem here, as Defendants aptly point out, is that these works do not seem to resemble each other in the least." Id. at *9.

The Works

At the center of the lawsuit are the two works: Shull's book, Market Mind Games, and the television series, Billions.

Market Mind Games explains the basics of neuroscience and describes for the reader a trading system that Shull claims is designed to take full advantage of your emotional assets. Shull's theories are based on the academic disciplines of neuroeconomics, modern psychoanalysis, and neuropsychoanalysis. To explain these theories in a more digestible fashion, Shull presents them in her book through a series of lectures, workshops, and seminars given by a fictional version of Shull based on the "typical lectures, workshops and consulting programs" she gives in real life. Shull incorporates other fictional characters as a way to transition the book through her typical academic-style lectures.

The main subject of the book, besides Shull, is the character Michael Kelly, a well-to-do man making his way through his career starting as a PhD candidate then working at a Wall Street firm before finally starting his own hedge fund, all while participating in group lectures from Shull. Eventually, after Michael starts his own fund, Shull joins as its in-house performance coach, where Shull and Michael engage in a single one-on-one counseling session about Michael's bad trade.

Billions, by contrast, is a highly acclaimed hour-long "complex drama about power politics in the world of New York high finance. Shrewd, savvy U.S. Attorney Chuck Rhoades ... and the brilliant, ambitious hedge fund king Bobby 'Axe' Axelrod ... are on an explosive collision course, with each using all of his considerable smarts, power and influence to outmaneuver the other." Axe went from a working-class background to billionaire founder of the hedge fund, Axe Capital, using both legal and illegal means to successfully beat the market. Chuck, who grew up in a privileged New York family, is the United States Attorney of the Southern District of New York known for his perfect record prosecuting financial crimes – but he also has a flexible moral compass. The early seasons of Billions chronicle the showdown between Axe and Chuck that arises when Chuck begins prosecuting Axe for his alleged illegal activities.

Complicating the battle between Axe and Chuck is Wendy. Wendy is married to Chuck but has worked with Axe for the past fifteen years as an in-house psychiatrist and performance coach. Wendy and Chuck have two children and live in a multimillion-dollar townhouse in Brooklyn. Wendy's career supports their lifestyle as she earns eight times as much as Chuck. The power dynamics between Chuck and Wendy are defined by Wendy's first introduction to viewers – through their sadomasochistic sex lives with Wendy as the dominatrix and Chuck as the submissive.

Further complicating Chuck and Wendy's relationship is Wendy's close relationship with Axe. Wendy has worked with Axe longer than she has been married to Chuck and is his biggest defender. In Wendy's role as in-house performance coach, she works with Axe Capital employees in one-on-one sessions, most often with Axe himself. Wendy again is the dominant one, going toe-to-toe with Axe on multiple occasions. Despite Wendy's dedication to both men, Chuck and Axe consistently question Wendy's loyalty to them as they try to outmaneuver each other.

The Lawsuit

Shull claims that Billions is an "unauthorized" use and "derivative work" of her book, Market Mind Games, since they both depict a female financial performance coach who explains how a trader's emotions can affect trading decisions. According to Shull, back in 2012, Defendant Sorkin invited Shull on his show Squawk Box, where they discussed her book. Shull alleges that three years later Sorkin emailed Shull and "introduced" her via email to the actress already cast as Wendy in order to discuss the character. Shull then alleges she had an "initial" meeting with the actress playing Wendy and two of the creators of Billions that Shull claims "was the beginning of the[ir] relationship," and that she expected the "terms [of Shull's alleged involvement in Billions] would be negotiated subsequently." No terms were ever discussed or agreed upon.

Shull brought claims for direct, contributory, and vicarious copyright infringement and state law claims for unjust enrichment, implied in fact contract, misappropriation, accounting, violation of Section 51 of New York Civil Rights Law, injury to business reputation, dilution, and unfair competition in violation of GBL Section 360-L, and deceptive trade practices in violation of GBL Section 349 and under common law.

Defendants moved to dismiss the complaint, arguing that the copyright infringement claims must fail as a matter of law because the works were not substantially similar and that the state law claims were either preempted by the Copyright Act, or in the alternative, failed to state a claim. The court granted Defendants' motion in full, finding that Market Mind Games and Billions were not substantially similar under any applicable test. The Court also dismissed Shull's state law claims for implied in fact contract, unjust enrichment, and Section 51 for failure to state a claim and held that the other state law claims were preempted by the Copyright Act because they were based on the same alleged misappropriation as Shull's copyright claims.

The Decision: Copyright Claims

The court applied three tests – the discerning ordinary observer test, the qualitative/quantitative test, and the fragmented literal similarity test – to determine whether Market Mind Games and Billions were substantially similar and, therefore, could withstand Defendants' motion to dismiss. After reviewing the works, the Court explained that under any test "these works do not seem to resemble each other in the least" and dismissed the copyright claims with prejudice. Shull, 2019 WL 5287923 at *9, *14.

Under the discerning ordinary observer test, the court asked whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014) (quoting Laurezysses v. Idea Group, Inc., 964 F.2d 131, 141 (2d Cir. 1992)).

Comparing the protectible elements of the works, the court found that the "total concept and feel, theme, characters, plot, sequence, pace, and setting" of the two works "differ greatly." As Judge Daniels put it, "[a]nd the issue does not lie in the fact that one is a book and one is a television show, but the fact that Plaintiffs' work is an academic work which interweaves fiction to better help the reader understand Shull's ideas, while Defendants' work is a television show, based in the Southern District of New York, to demonstrate the drama that lies in the age old trifecta of money, power, and sex." Shull, 2019 WL 5287923, at *9.

Finding no substantial similarity under the discerning ordinary observer test, the court applied the quantitative/qualitative approach, which addresses "the amount of copying not only of direct quotations and close paraphrasing, but also all other protectible expression in the original work", Warner Bros. Entm't, Inc. v. RDR Books, 575 F. Supp. 2d 513, 534-35 (S.D.N.Y. 2008), as well as the fragmented literal similarity test, where substantial similarity may be shown by demonstrating "the copying of even a relatively small quantitative portion of the pre-existing work ... if it is of great qualitative importance to the [pre-existing] work as a whole." TurfAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 597-98 (S.D.N.Y. 2013).

In analyzing whether there was substantial similarity under either test, the court focused on Shull's claim that the character of Wendy in Billions copied the character of Shull in Market Mind Games. The court explained that Shull's character was "not given much of a persona" in Market Mind Games because the purpose of that character was to explain Shull's theories. Shull, 2019 WL 5287923 at *11. The court characterized Shull's claim that Wendy and Shull were substantially similar as "essentially argu[ing] that because Wendy is also a female in-house hedge fund performance coach, Defendants copied her fictionalized character of herself." Id. (emphasis original).

The court quickly rejected this argument finding a female in-house performance coach is "not a copyrightable idea," because if it were, Shull would "essentially [be] grant[ed] ... a monopoly on the entire subject matter of the female performance coach." Id. Moreover, the court held that "[a] finding of copyright infringement in this case would serve to be even more troubling, as the character of Denise and Wendy do not resemble one another in the slightest." Id. Overall, because the court could not "identify any copying, not even copying that is said to be 'fragment,'" the court dismissed Shull's copyright infringement claims with prejudice. Id. at *10, *14.

The Decision: State Law Claims

The court then found that Shull's claims for unfair competition, deceptive business practices, and lack of accounting all arose from Defendants' alleged unauthorized use of Market Mind Games and thus were preempted by the Copyright Act. Id. at *14. The court found that the remaining state law causes of action for implied in fact contract, right of publicity under Section 51, and unjust enrichment were not preempted by the Copyright Act, as these claims did not derive entirely from the alleged misappropriation of her work, but dismissed these claims because they failed to state claims. Id.

Of great importance, in finding Shull failed to state a claim for implied in fact contract, the court distinguished the Second Circuit's holding in Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2nd Cir. 2012). In Forest Park, the court found that plaintiff's claim for breach of implied in fact contract was neither preempted nor subject to dismissal where plaintiff had submitted a written idea for a television series and alleged an implied promise to pay reasonable compensation if the idea was used. Id. at 432.

Here, the court agreed that Shull's implied in fact contract claim was not preempted but distinguished Forest Park because here, Shull merely consulted on Billions, she had not submitted a written idea, and she had failed to allege a required element of her claim – that "both parties had understood that there was an agreement." Shull, 2019 WL 5287923 at *15. Moreover, the court found Shull's counsel's "uncertain" response of "yes and no" to the court's question of whether there was "some agreement that Shull would be compensated for her services" was evidence "denot[ing] that there was no manifestations" or "inferences" of mutual assent, a required element of any contract, implied or express. Id. at *15. For the same reasons, the court dismissed Shull's unjust enrichment claim. Id. at *16.

Finally, the court also dismissed Shull's right of publicity claim under Section 51, which asserted that Defendants benefited from editorial articles about Shull which "piqued interest in Billions" and made the story more believable, because any article allegedly written by Defendants that used Shull's name, picture, or persona did not advertise or promote Billions. Id.

Shull has until November 8, 2019 to file a notice of appeal.

Elizabeth McNamara, Jamie Raghu, and Rachel Strom of David Wright Tremaine in New York represented defendants. Plaintiff was represented by CKR Law LLP and Felicello Law P.C., NY.

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