BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, December 28, 2001.)
The document most often used by producers in their attempts to induce broadcasters to provide funding for a television series is a treatment. Ordinarily, this consists of an outline of the premise of the series, a description of the continuing characters and the interrelationships among them and a summary of the pilot and early episodes. Recently, a federal court dismissed a claim against HBO which alleged that its television series, “Arli$$,” violated the copyright of the proprietor of a treatment (the “Treatment”) for a proposed television series entitled “Schmoozers.” 1
Plaintiff’s Treatment “lampoons the lives of two smarmy ‘east coast’ Agents concurrently laughing at the ‘show-bizzification’ of everyday discourse in mainstream America.” Its main characters are Randee Crouch and Tym Barker, two partners in the StarTrack talent agency who grew up in the same town in Indiana and have been friends since childhood. Tym’s sister is their principal assistant, and other principal characters are Jack O’Shaunessey, a not very successful comedian; a secretary named Carter Palen Campbell, described as a woman with a prep school background who is politically passionate and somewhat dramatic in her personal conduct; Tym’s girlfriend, and Fred Stovall, a client who is a “radio shock-jock.” The primary sets are a downtown restaurant, a showcase club, a steam room at a health club, and a tanning parlor.
The Court states that the Treatment somehow found its way into the files of an employee of defendant HBO, which thereafter produced the popular series entitled “Arli$$.” Its central character is a west coast sports agent who grew up in New Jersey. He has an assistant named Kirby, a former All-American and professional football player who was Arliss’s first client, an Asian American secretary named Rita Wu and an African American chief financial officer named Stanley Babson. There are no roles similar to those envisioned in “Schmoozers” for Jack O’Shaunessey, Carter Palen Campbell or Fred Stovall. The primary setting for “Arli$$” is the office of the Arliss Michaels Agency and there is no regular restaurant, showcase club, health club or tanning parlor.
Plaintiff contends that there are such significant similarities in the details of her Treatment and the “Arli$$” series that a trier of fact could conclude that “Arli$$” violates her copyright. After suit was instituted, defendant moved for summary judgment, contending that the only similarity between the two properties is that both employ well-known concepts which no one may copyright.
To establish her claim of copyright infringement, plaintiff must prove that the defendant had access to her copyrighted work and that substantial similarities exist as to protectible material in the two works. Although defendant offers substantial evidence that the creators of “Arli$$” never had access to plaintiff’s work, the existence of a copy of her Treatment in its files creates an issue of fact that precludes summary judgment on that issue. Thus, the remaining question is whether the protectible expression in plaintiff’s work is substantially similar to the equivalent portions of defendant’s work.
In support of her claim, plaintiff relies upon the report of an expert in television studies who detailed what he considered to be the significant similarities between the two properties and concluded that the two series are “uniquely alike.”
In evaluating the merits of the action, the Court read the expert’s report and the Treatment, and viewed the first five episodes of “Arli$$” and a videotape prepared by plaintiff which compared the specific portions of the Treatment with segments from various “Arli$$ episodes. It did not consider it essential to view all fifty-nine Arli$$ episodes that were submitted because it believed it reasonable to conclude that the basic theme of the series and the unique traits of each of the characters would be developed in the first few episodes or in the segments submitted by plaintiff.
The Court concluded that the problem with plaintiff’s claim and the report of her expert is that, to the extent there are similarities, they are found either in stock characters or themes that are common to the talent agency business or to situation comedies in general, or in trivial details that are not essential to either series.
The Court quotes the statement from Hogan v. DC Comics2 that “A stock character or basic character type…is not entitled to copyright protection… No character infringement claim can succeed unless plaintiff’s original conception sufficiently developed the character, and defendants have copied this development and not merely the broader outlines.”
It notes that the strong similarity between two works is that they both involve talent agents who operate in a “bottom-dwelling ethical nether world, where lying is an art form; insincerity, a science, and personal convictions are as commonplace as nose rings.” (Quoting from the Treatment). Observing that this concept is not original or protectible under the copyright law, the Court states that “it does not strain the concept of judicial notice to observe that books, movies and television series are full of such unethical men and women in a variety of businesses and… this is not an uncommon perception of talent agents.”
In rejecting plaintiff’s argument that “Arli$$” copied more than her theme and misappropriated her use of a male sidekick, a female assistant and an African American character with a business background, the Court states that the concept of a male sidekick and a female assistant is not new. It cites various television series featuring male leads and female sidekicks and the interplay of male and female characters.
The Court also rejects plaintiff’s arguments that the personality traits, physical characteristics and personal histories of the “Schmoozers” characters and their interaction in the series are so similar to those of “Arli$$” that they establish copyright infringement of her work. It states that there are significant differences between the two sets of characters and the overall concept of the two shows.
Acknowledging that some similarities do exist – Arliss Michaels and Tym Barker both wear gold-rimmed glasses and designer suits, and are utterly amoral in their approach to their businesses – these characteristics are not entirely distinctive. They are both stereotypes of the amoral talent agent, but are not the same character. The most that could be said is that the Arliss character embodies “the broader outlines” of Tym Barker. However, this is not a protectible element of plaintiff’s work.
The Court examines, and gives short shrift to the statement of plaintiff’s expert that there are substantial similarities between the supporting male agent character in “Schmoozers” and the supporting male agent character in “Arli$$.” According to the Court, an even greater stretch in plaintiff’s argument is the contention that “Arliss’s” African American chief financial officer was copied from a reference in the Treatment to an African American attorney employed at Goldman Sachs in mergers and acquisitions. This attorney is not a character in “Schmoozers” and he is not described or even given a name in the Treatment.
The Court is equally dismissive of what it characterizes as “plaintiff’s attempt to pull isolated segments out of the fifty-nine Arli$$ episodes to prove copying of her creative work.” It states that it is not surprising that in a substantial number of episodes there are instances when themes outlined in the “Schmoozers” Treatment are found present in a series about a sports agent.
The Court notes the observation in CK Comp. v. Burger King Corp.3 that “the essence of infringement lies in taking not a general theme, but its particular expression through similarities of treatment, details, events and characterizations…The law will not grant an author a monopoly over the unparticularized expression of an idea at such a level of abstraction or generality as unduly to inhibit independent creation by others. Consistent with these principles, copyright law does not protect stock characters, incidents or settings that are as a practical matter indispensable or standard in the treatment of a given topic.”
The Court also examines plaintiff’s argument that two dramatic devices used in “Arli$$” were copied from “Schmoozers”: 1) a character who talks directly to the audience, and 2) celebrities appearing as themselves. Noting that ancient Greek tragedy employed a chorus that spoke to the audience and this device is far from unique in modern theater, film or television, the Court concludes that there is nothing novel about either of these devices. Thus, even if HBO copied them from plaintiff’s Treatment, there is no copyright violation.
In conclusion, plaintiff has failed to show that protectible portions of her Treatment were substantially reproduced in the “Arli$$” series. Thus, even accepting her assumption that the creators of “Arli$$” had access to her Treatment and copied all of the similar ideas that may be found in the two works, plaintiff cannot prevail. Accordingly, the Court granted defendant’s motion for summary judgment and dismissed the complaint.
1 Willis v. Home Box Office, No. 00-2500 (S.D.N.Y., November 15, 2001)
2 48 F Supp. 2d 298, 310 (S.D.N.Y. 1999).
3 No. 92 Civ. 1448, 1994 WL 533253 (S.D.N.Y. September 30, 1994)