USDC S.D. New York, May 11, 2009
- Court denies defendants’ motion to dismiss based on the absence of copying but dismisses plaintiff’s copyright infringement claim regarding her treatment for a weight loss reality television show on its own motion because plaintiff had not alleged copyright registration of her work
On its own motion, the court dismissed Sonya Latimore’s complaint for copyright infringement and breach of contract against defendants, including NBC Universal, Inc. and Kim Fuller, a partner of McCreary & Fuller Public Relations Corp. Latimore alleged that, in or around December, 2003, she developed an original written treatment for a weight loss reality television show titled Phat Farm and that she later engaged Mr. Fuller as her agent, asking him to pitch her proposal to television studios. Latimore further claimed that defendants copied her treatment, using it as the basis for NBC’s hit show Biggest Loser, which NBC debuted in October, 2004.
NBC made a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure based on the absence of copying as a matter of law. In its motion, NBC asked the court to compare DVDs of Biggest Loser to plaintiff’s written treatment. The court declined to make this comparison, stating that such an analysis would require a detailed showing, preferably supported by an expert. The court found that defendants’ allegations of access and copying are “issues that must be explored in discovery.” The court denied NBC’s motion as premature, and also declined to convert the motion to one for summary judgment.
After denying NBC’s motion, the court dismissed Latimore’s complaint on its own motion, with leave to re-plead. The court dismissed plaintiff’s copyright infringement claim because plaintiff failed to allege registration or pre-registration of the treatment with the Register of Copyrights as required under Section 411 of the Copyright Act. Latimore alleged that she registered the treatment with the Writers’ Guild of America, rather than with the Register of Copyrights, which the court found to be a fatal deficiency in the copyright infringement claim.
Plaintiff also brought two state law claims against Fuller. The first of these claims was for breach of implied contract and the second was for “breach of confidence,” which the court found “essentially the same” as the contract claim. The court dismissed both of these claims for failure to plead a breach committed by Fuller. Latimore alleged that she engaged Fuller to pitch her treatment to television studios and the court found that is what Fuller did. The court stated that plaintiff’s allegation “[t]hat the studios may have copied the proposal has nothing to do with Fuller.” The court also dismissed plaintiff’s state law claims on the ground of lack of diversity jurisdiction. Because Fuller was alleged to have acted on behalf of his company, McCreary & Fuller, which plaintiff alleged to be a New York corporation, the court reasoned that McCreary & Fuller is the party to be charged. As plaintiff also claimed that she is a New York citizen, there is no diversity of citizenship between the parties. The court also noted that Latimore did not allege the requisite amount in controversy.