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District court dismisses plaintiffs’ claim that Fox’s popular television show New Girl infringes their copyrighted screenplay because complaint did not adequately identify works at issue, and dismisses claims for breach of implied-in-fact contract, quantum meruit, and right of attribution.
Plaintiffs Stephanie Counts and Shari Gold wrote a television pilot script for a proposed series called Square One, based on Counts’ alleged personal experiences after she separated from her husband. In their complaint, plaintiffs allege that, after they completed the first draft, they consulted a producer named Holly Harter and then rewrote the pilot into a feature-length screenplay. In mid-2008, Harter told plaintiffs that she sent a copy of Square One to an agent at Endeavor (which later became William Morris Endeavor Entertainment, or WME). When Harter’s efforts to arrange a meeting with WME fizzled in 2009, plaintiffs set out to promote Square One on their own, with no success.
Plaintiffs first learned about Fox’s plans for New Girl on February 17, 2011, when a friend emailed them a summary of the new show under development. Before New Girl premiered, plaintiffs retained counsel and informed defendants that they believed New Girl infringed their copyrights in Square One. Plaintiffs filed suit on January 16, 2014, asserting claims for direct copyright infringement, contributory infringement, vicarious infringement, breach of contract/quantum meruit and right of attribution.
In support of their motion to dismiss, defendants argued that New Girl is not substantially similar to Square One. The court declined to rule on that issue, however, because of the need for expert testimony and the need for fact-finding on the issue of access. The court nevertheless dismissed plaintiffs’ copyright infringement claims, because plaintiffs’ infringement claims referenced four different copyrighted versions of their script, as well as the pilot script, defendants’ pilot episode and defendants’ multi-season television series, and it was impossible to discern which of plaintiffs’ works was purportedly infringed by which of defendants’ works. The court concluded that clarity regarding the exact nature of plaintiffs’ allegations was necessary to guide the court as litigation progressed, given that preliminary drafts are irrelevant to the substantial similarity question. The court gave plaintiffs an opportunity to try to cure these defects in an amended complaint.
Defendants argued – and the court agreed – that plaintiffs’ claim for breach of implied-in-fact contract was time barred under the two-year California statute of limitations applicable to such claims. The court found that plaintiffs’ cause of action accrued on September 20, 2011, when New Girl premiered on Fox, yet plaintiffs did not file their claim until January 16, 2014 – more than two years later. Plaintiffs argued that their claim should be saved based on equitable tolling and equitable estoppel. The court rejected these arguments, finding that plaintiffs failed to show that their failure to file suit was reasonable and in good faith, or that defendants’ conduct caused them not to file suit within the limitations period. Nevertheless, the court gave plaintiffs an opportunity to re-plead their breach of implied-in-fact contract in an amended pleading.
The court next construed plaintiffs’ quantum meruit claim as a claim for breach of implied-in-law contract, which defendants argued was preempted by the Copyright Act. The court agreed, finding that the claim, as alleged, lacked an “extra element” that differentiated it from a claim for infringement under the Copyright Act. While it dismissed the quantum meruit claim with leave to amend, the court expressed doubts that plaintiffs would be able to state a valid claim. Finally, the court dismissed plaintiffs’ claim seeking an injunction requiring defendants to credit plaintiffs as the creators of New Girl, because the Copyright Act recognizes only a limited right of attribution applicable to works of visual art, not screenplays.