Dillon v. NBCUniversal Media, LLC, USDC, C.D. California, June 18, 2013
- District court denies defendants’ motion to dismiss plaintiff’s claim for copyright infringement involving reality television series “Stars Earn Stripes,” finding that plaintiff sufficiently alleged that defendants had access to plaintiff’s treatment for reality show and that similarities between two works precluded finding that they were not substantially similar as a matter of law. Court dismisses plaintiff’s breach of implied-in-fact contract claim against NBC and Universal for lack of agency but allows plaintiff’s claim for inducement of breach of contract claim against those defendants.
Plaintiff Richard Dillon brought suit against several defendants, including NBCUniversal Media, LLC, Universal Television Networks, producer David Hurwitz and two other producers, and their production companies, alleging that in creating the series “Stars Earn Stripes” defendants misappropriated his ideas for a reality television show called “Celebrity SEALs.” Plaintiff’s claims included copyright infringement, breach of implied-in-fact contract (a Desny claim), inducement of breach of contract, and unfair competition under California’s Unfair Competition Law (UCL). The court denied defendants’ motion to dismiss plaintiff’s copyright infringement claim, as well as the inducement of breach of contract claims against defendants NBC and Universal, but dismissed plaintiff’s breach of implied-in-fact contract claim against those defendants. The court also allowed plaintiff’s UCL claim to go forward, to the extent that it was not based on his breach of contract claim.
In May 2011, plaintiff wrote a treatment for a television series titled “Celebrity SEALs,” a proposed reality series that pitted celebrity contestants against one another in events mimicking training received by Navy SEALs. Plaintiff registered the treatment with the Writers Guild (and later with the U.S. Copyright Office). Plaintiff and the co-creator of his proposed series, Jonathan Moss, began contacting television producers and were eventually referred to defendant Hurwitz. After Moss and Hurwitz discussed the project by phone, during which Hurwitz allegedly praised the idea, Moss sent Hurwitz an email including an attachment of the treatment. In August 2011, Hurwitz indicated that he had spoken with an NBC executive, who did not feel that the proposed series was right for NBC, and further that Hurwitz was too busy to stay involved with the project.
In August 2012, plaintiff learned that defendants had decided to produce and broadcast the program “Stars Earn Stripes.” Hurwitz and the other individual defendants were credited with creating the series. Plaintiff filed suit against those producers individually, their production companies, NBC, and Universal, alleging that the program was based on and utilized the ideas and story lines from the treatment without his consent or any compensation. Defendants moved to dismiss all of plaintiff’s claims.
In moving to dismiss plaintiff’s copyright claim, defendants argued both that plaintiff did not allege facts demonstrating that defendants (other than Hurwitz) had access to his treatment and further that “Stars Earn Stripes” was not substantially similar to plaintiff’s proposed series. The court noted that proof of access requires a reasonable opportunity for defendants to view or copy plaintiff’s work. Plaintiff alleged, and defendants admitted, that Hurwitz received a copy of the treatment. In addition, plaintiff alleged that Hurwitz had a business relationship with NBC and approached NBC with the idea for the show and that Hurwitz and two others were all credited with creating “Stars Earn Stripes.” Based on these allegations, the court found it reasonable to infer that Hurwitz shared the treatment with his co-producers, precluding a determination, as a matter of law, that the other defendants lacked access.
In determining whether plaintiff’s treatment and “Stars Earn Stripes” were substantially similar, the court began by noting that the Ninth Circuit has “expressed a certain disfavor for summary judgment on questions of substantial similarity.” Under the Ninth Circuit’s “extrinsic test,” a court must take care to inquire only whether protectable elements, standing alone, are substantially similar, focusing on the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. Viewing the protectable elements of the works as a whole, the court found that sufficient similarities existed to preclude a determination as a matter of law that the works were not substantially similar, especially in light of defendants’ high degree of access to the treatment, which lowers the standard of proof for substantial similarity.
The court dismissed plaintiff’s breach of implied-in-fact contract claim against NBC and Universal, finding that that Hurwitz did not have authority to bind NBC or Universal and that plaintiff’s assumption or belief that Hurwitz had authority to act on behalf of NBC and Universal was insufficient to support his Desny claim. Plaintiff also alleged that even if NBC and/or Universal were not liable for breach of contract, they induced a breach of the agreement between plaintiff and Hurwitz. Although defendants argued in their motion to dismiss that plaintiff had failed to allege intent, the court disagreed, finding that plaintiff had included sufficient allegations of the parties’ knowledge of the agreement and their actions to induce a breach. Accordingly, the court allowed plaintiff to proceed with that claim.
On plaintiff’s UCL claim, the court rejected defendants’ argument that plaintiff was not entitled to protection under the law as he was neither a consumer nor competitor. The court found it reasonable to infer that plaintiff was a competitor because he alleged that he was trying to create a series and that defendants did, in fact, create a program that copied key elements of plaintiff’s treatment.
The court accepted defendants’ contention that plaintiff’s unlawful UCL claim could not be predicated on a breach of contract claim. Still, the court found that plaintiff adequately alleged an unfair business practice in claiming that defendants directly copied his treatment and intentionally lied to him in an effort to steal his work.
The court also rejected defendants’ contention that plaintiff’s UCL claim was pre-empted by federal law, noting that plaintiff had alleged a Desny claim and that therefore his claim was not pre-empted either by copyright law or the Lanham Act. Although the court found that plaintiff would not be entitled to restitution if he prevailed, it rejected defendants’ contention that plaintiff was without a remedy. Having concluded that plaintiff adequately had alleged unfair business practices potentially entitling him to injunctive relief, the court concluded that dismissal of plaintiff’s UCL claim was unwarranted.