USDC E.D. Virginia, March 31, 2009
The district court dismissed all claims filed by an independent producer who negotiated with but failed to reach a development or distribution agreement with defendant NBC.
The plaintiff produced a television pilot about taking care of aging parents, and engaged in discussions with NBC for two years about the possibility of NBC using her programming or acting as a distribution partner. During these discussions, the plaintiff provided NBC with a DVD containing the pilot episode, a treatment and a book excerpt. Although at one point NBC told the plaintiff it wanted to use her materials and would offer her $750,000 for rights to the materials, NBC subsequently told the plaintiff that it would not be using her materials. After negotiations ceased, the plaintiff sent NBC a letter acknowledging that negotiations had ceased, that she intended to seek other means of distribution, and that she retained all rights to her program.
Three years later, NBC began airing a television series, Trading Places, about taking care of aging parents, as part of its NBC Nightly News program. The plaintiff sued for copyright infringement, breach of contract, breach of implied contract and conversion. A magistrate judge recommended dismissal of all claims except the breach of contract claim, and both parties objected. The district court conducted a de novo review of the contested portions of the recommendation and dismissed all the claims.
The court began by rejecting the plaintiff’s argument that the magistrate considered materials not properly before the court and that the materials considered were incomplete because the defendant did not provide hardcopies of the materials found on the defendant’s web site. The court held that it was entitled to consider materials on the defendant’s web site because the plaintiff referenced the defendant’s web site in her complaint and the court properly considered a DVD that the defendant provided with its motion to dismiss. Furthermore, the court stated that the plaintiff cited to no case law to support her argument that the content found on the defendant’s web site may only be reviewed in its hardcopy form.
Moving on to the copyright infringement claim, the court first established that its analysis based on the materials in this case would require both an objective and subjective inquiry, i.e., the court must consider whether the two works are extrinsically and intrinsically similar. After examining the plaintiff’s materials and the defendant’s online content, the court concluded that there were no substantial similarities, intrinsically or extrinsically. The defendant’s work provided an “intimate glimpse into lives of real families and present[ed] personal portraits” while the plaintiff’s approach was to present solutions including “how to” advice from medical professionals.
Regarding the breach of contract claim, the court held that the parties never entered into an agreement, as evidenced by the plaintiff’s letter acknowledging that negotiations had ceased and that she planned on seeking other means of distribution. Finally, the court held that the plaintiff’s breach of implied contract claim was preempted by the Copyright Act (while noting that the plaintiff did not object to the magistrate’s recommendation on this issue), and that the plaintiff failed to adequately allege conversion of her property because the defendants did not obtain the materials without authorization and did not use the materials to the exclusion of the plaintiff.