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Jerry Seinfeld Wins “The Contest” By Defeating Copyright Lawsuit at the Second Circuit

Jerry Seinfeld Wins “The Contest” By Defeating Copyright Lawsuit at the Second Circuit

By Evan M. Rothstein and Jesse Feitel

In 2018, Christian Charles sued famed comedian Jerry Seinfeld for copyright infringement, alleging that Seinfeld stole the concept for his popular "Comedians in Cars Getting Coffee" Netflix series, and, yada yada yada, on May 7, 2020, the Second Circuit affirmed the district court's order dismissing the lawsuit, telling Charles, "no soup for you!" Charles v. Seinfeld.

More than nothing did occur between filing and the Second Circuit's decision, though. In fact, the case serves as a good reminder to copyright counsel: be sure to consider whether your client's infringement claim actually concerns ownership, and, if so, be very mindful of the statute of limitations. The case involved the distinction between the time frame during which a plaintiff must file a claim alleging copyright infringement versus a claim alleging copyright ownership. Because this lawsuit was really about who owned the copyright to the series pilot, the Second Circuit held, in effect, that Charles had not been credited in the pilot years earlier, and had simply waited too long to file suit against Seinfeld. Before digging more into the law, let's open the envelope on the facts behind the case.

"Comedians in Cars" is a popular streaming series where Jerry drives one of his many vintage automobiles, loaded up with cameras and microphones, and "picks up" comedians and other celebrities to cruise around and grab a cup of coffee. The program has taken Seinfeld from New York coffee shops with Tina Fey and Steve Martin to sharing a cup of java with President Obama at the White House. In 2017, Seinfeld signed a lucrative deal for the series to be presented exclusively on Netflix.

Since the 1990s, Seinfeld and the plaintiff, Christian Charles, a writer and director, had worked together on various projects. During one conversation, Charles allegedly suggested to Seinfeld that he should create a television show based on the concept of two friends talking while taking a drive together. Charles then created what is known in the industry as a treatment—in other words, a brief outline of the plot of the program—but Seinfeld declined to proceed with the project at that time.

Years later, in 2011, Seinfeld allegedly mentioned to Charles that he was thinking about developing a talk show where comedians would drive to a coffee shop and chat as his next project. Charles then reminded Seinfeld that Charles had worked on a treatment for a similar project years earlier, and the two purportedly agreed to work together on the project. Charles then created a new treatment, which he alleged captured the "look and feel" of the "Comedians" program, and allegedly helped Seinfeld settle on the name of the program.

The working relationship between the two parties then, inevitably, began to fall apart, perhaps over a dinner with a big salad. Seinfeld only offered Charles the opportunity to work on the project only on a "work for hire" basis, whereas Charles expected to receive compensation and backend involvement with the program. By mid-2012, Charles had no further involvement with the project and the series debuted without crediting Charles in any way.

In 2016, after Charles claimed that he finally concluded that "Seinfeld never intended to include [him] in the project[,]" Charles registered his 2011 treatment with the Copyright Office. After Seinfeld inked his deal with Netflix in 2017, Charles attempted to contact him. Seinfeld's lawyer responded, informing Charles that Seinfeld was the creator and owner of the show. Then, finally, on a day when the sea was angry in 2018, Charles filed suit in the U.S. District Court for the Southern District of New York against Seinfeld and other parties involved in the production or distribution of the program. Charles brought claims for copyright infringement of the treatment, script, and pilot, in addition to claims for joint authorship, injunctive relief, and several state causes of action.

To successfully sue for copyright infringement, a plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."  Kwan v. Schlein, 634 F.3d 224, 229 (2d Cir. 2011) (citation omitted). Charles's lawsuit turned on the first element. When a plaintiff alleges copyright infringement, the three-year statute of limitations is continually reset so long as the infringement is ongoing. By contrast, and critically in this bizarro case, when the plaintiff's claim is really about who owns the copyright at issue, that claim accrues only once—when a "reasonably diligent plaintiff" would have been put on notice as to the existence of the claim.

Seinfeld filed a motion to dismiss arguing that Charles blew that deadline. The district court agreed, concluding that Charles was time-barred from bringing his claim against Seinfeld by the Copyright Act's three-year statute of limitations for ownership claims. See 17 U.S.C. § 507(b).

The district court found that Charles had not lived in a bubble during this time period and was on notice that his ownership claim had been repudiated by Seinfeld since at least 2012, when Seinfeld rejected Charles's request to play a significant role in the development of the program and the defendants moved forward with the project without including Charles. Because Charles filed his lawsuit in 2018, three years after the statute of limitations had expired in 2015, he was barred from pursuing his ownership claim against Seinfeld. The district court also declined to exercise supplemental jurisdiction over Charles's remaining state law claims and dismissed the lawsuit with prejudice.

In a two-page unpublished decision, on May 7, 2020, the Second Circuit agreed with the district court's "well-reasoned opinion" and affirmed the order dismissing the suit.

According to the appellate court, Charles's complaint did not present an infringement claim, which would have addressed "whether subsequent iterations of the show make use of the material in the script for the pilot." In that case, Charles's deadline to sue might have reset each day an episode of "Comedians" incorporating material from the pilot script was available for streaming. Instead, this was really a dispute about whether Charles owned—either on his own or jointly with Seinfeld or others—a copyright in the pilot episode.

Any assertion that this was a lawsuit about copyright infringement was belied by Charles's statements throughout the action, where he "consistently assert[ed] that ownership is a central question."

The Second Circuit then affirmed the district court's conclusion that Charles's ownership claim was time-barred. The latest possible event that would have put a reasonably diligent plaintiff on notice that his ownership claims were disputed was in July 2012, when the show premiered without crediting Charles in any way. Because Charles had waited seven years to file his lawsuit, it was barred by the Copyright Act's statute of limitations, rendering Seinfeld the master of this lawsuit.

The case presents a stark reminder that copyright lawyers should consider whether their client has actually presented an ownership claim instead of one alleging infringement. Courts in the Second Circuit have observed that a claim sounds in ownership when the "backbone" of the dispute concerns, inter alia, whether the plaintiff's "editorial contributions to [the work] were significant enough to qualify her as the author and therefore owner of the copyright" (Kwan, 634 F.3d at 229) or where "copyright ownership, and not infringement, is the gravamen of the plaintiff's claim" because the "plaintiff's copyright ownership is not conceded" (Ortiz v. Guitian Bros. Music Inc., No. 07 CIV. 3897, 2008 WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008)). In this situation, Charles did not go out on a high note, but perhaps he will try to double-dip and file a state lawsuit with different claims? Let's hope not, except then we may get to write another article about nothing.

Evan Rothstein is a partner at Arnold & Porter who focuses his practice on complex commercial litigation with a specific emphasis on intellectual property. Jesse Feitel is an associate at Arnold & Porter who primarily practices in the field of communications & media law, in addition to complex commercial litigation. Seinfeld was represented by Orin Snyder of Gibson Dunn, NY. Charles was represented by Peter Skolnik, Clark Guldin, NJ.

*Warner Bros. is the copyright holder and producer of each episode of the sitcom, Seinfeld.

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