Opinion
00 Civ. 2500 (JSM).
November 5, 2001
Robert N. Fass, Friedman, Krauss Zlotolow, New York, N.Y., For plaintiff.
Orin Snyder, Cynthia S. Arato, Parcher, Hayes Snyder, New York, N.Y., For defendant.
OPINION AND ORDER
Many people would consider the phrase "sleazy talent agent" to be redundant. While this is no doubt as unfair a stereotype as is the "sleazy lawyer," no one could reasonably claim a copyright in the concept of a sleazy talent agent. The question presented here is what degree of detail must an author add to such a well-recognized stock character in order to obtain copyright protection.
In this case, Plaintiff prepared an outline for a television situation comedy — known in the trade as a "treatment" — that proposed a series to be called "Schmoozers" "that lampoons the lives of two smarmy `east coast' Agents concurrently laughing at the `show-bizzification' of everyday discourse in mainstream America." Schmoozers Treatment, Snyder Aff. Ex. D at 1. Plaintiff's Treatment somehow found its way into the files of an employee of Defendant HBO, which sometime thereafter produced a popular series entitled "Arli$$," whose central character is a smarmy west coast sports agent.
Defendant now moves for summary judgment contending that the only similarity between Arli$$ and Schmoozers is that both employ well-known concepts which no one may copyright. Plaintiff contends, however, that there are such significant similarities in the details of her Treatment for Schmoozers and the series Arli$$ that a trier of fact could conclude that Arli$$ violates her Schmoozers copyright. To support her claim she relies upon the report of an "expert" in television studies who details what he considers to be the significant similarities between Schmoozers and Arli$$ and concludes that the two series are "uniquely alike."
DISCUSSION
To establish her claim of copyright infringement Plaintiff must establish that Defendant had access to her copyrighted work and that substantial similarities exist as to protectible material in the two works. Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986); Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976). Although Defendant offers substantial evidence that the creators of Arli$$ never had access to Plaintiff's work, the existence of a copy of Plaintiff's Schmoozers Treatment in HBO's files creates an issue of fact that precludes summary judgment on that issue. Thus, the question that remains is whether the "protectible expression in [the plaintiff's work] is substantially similar to the equivalent portions of [the defendant's work]." Cooling Systems Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 493 (9th Cir. 1985). See Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980).
In order to determine the extent to which Arli$$ employed copyrightable elements of the Schmoozers Treatment, the Court read the Treatment and Plaintiff's expert's report and viewed the first five episodes of Arli$$ and a videotape prepared by Plaintiff which compared specific portions of the Treatment with segments from various Arli$$ episodes. The Court did not consider it essential to view all fifty-nine Arli$$ episodes that have been submitted, since it is 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. On the basis of this review, the Court concludes that summary judgment is appropriate because comparison of the two works at issue shows that the only similarities between them relate to non-copyrightable elements. See generally Ring v. Estee Lauder, Inc., 874 F.2d 109 (2d Cir. 1989).
The problem with Plaintiff's claim and her "expert's" report is that, to the extent that 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 detail that are not essential to either series. Plaintiff's arguments also ignore the significant differences between the two series and strain to find similarities where none exist.
As Judge Scheindlin observed in Hogan v. DC Comics, 48 F. Supp.2d 298, 310 (S.D.N.Y. 1999):
A stock character or basic character type . . . is not entitled to copyright protection. Robinson v. Viacom International, Inc., 93 Civ. 2539, 1995 WL 417076, at *9 (S.D.N.Y. Jan. 4, 1995); Sinicola v. Warner Bros., 948 F. Supp. 1176, 1185 (E.D.N.Y. 1996). `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.' Smith v. Weinstein, 578 F. Supp. 1297, 1303, aff'd mem., 738 F.2d 419 (2d Cir. 1984); see also Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) ("the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly").
The strongest similarity between the two works at issue 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." Treatment at 1. This concept is not original or protectible under the copyright law. 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, as noted above, this is a not uncommon perception of talent agents.
Plaintiff argues, however, that Arli$$ copied more than her theme and misappropriated her use of a male side-kick, a female assistant and an African American character with a business background. The concept of a male sidekick and female assistant is not new. While the Court is not au courant with today's television scene, an earlier generation was entertained by Perry Mason, his side-kick Paul Drake and his assistant Della Street. Matt Dillon had Chester and Miss Kitty. The interplay of male and female characters in television sitcoms was essential to the comedy of Sid Caesar, Dick Van Dyke, Jackie Gleason and Lucille Ball. None of the creators of these televison classics would have thought of suing the others for copyright infringement.
Plaintiff argues that the personality traits, physical characteristics and personal histories of the Schmoozers characters and their interaction in the series are so similar to those of the Arli$$ characters that they establish an infringement of her work. While some similarities do exist, there are significant differences between the two sets of characters and the overall concept of the two shows.
Schmoozers is about 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. Their principal assistant is Tym's sister, Maricait, described in the Treatment as a persistently horn-rimmed dishwater blonde who evokes the "warmth and flaky brilliance of a young Diane Keaton." Treatment at 10. The other principal characters are a client, Jack O'Shaunessey, a not very successful comedian; a secretary named Carter Palen Campbell, a woman with a prep school background who is described as politically passionate and somewhat dramatic in her personal conduct; Tym's girlfriend, Gillian Landry, a successful television actress; and Fred Stovall, another client who is a radio shock-jock. The treatment lists as secondary characters Randee and Tym's parents, each of whom is individually described. The Treatment describes the primary sets as a "downtown restaurant", "a showcase club", the steam room at a health club, and a tanning parlor.
Arli$$ is about a sports agent who grew up in New Jersey and has his own agency. Arliss has an assistant named Kirby, a former All-American and professional football player who was Arliss's first client; an Asian American secretary named Rita Wu; and the agency's chief financial officer, an African American, Stanley Babson. These four characters are the mainstays of the program. There are no roles similar to that envisioned in Schmoozers for Jack O'Shaunessey, Carter Palen Campbell, Gillian Landry, Fred Stovall or the four parents of the two main characters. The primary setting for the Arli$$ show is the offices of the Arliss Michaels Agency and there is no regular restaurant, showcase club, health club or tanning parlor.
Despite the substantial differences between the characters in the two shows and their locales, Plaintiff, with the aid of her expert, attempts to demonstrate that the similarities between the characters in Schmoozers and the cast of Arli$$ are substantial enough to establish copyright infringement. While there are some similarities between Arliss Michaels and Tym Barker — they both wear gold-rimmed glasses and designer suits, and are utterly amoral in their approach to their businesses — these characteristics of Plaintiff's Tym Barker are not inherently distinctive. Arliss Michaels and Tym Barker are not the same character; they are both stereotypes of the amoral talent agent. The most that could be said is that the Arliss character embodies "the broader outlines" of Tym Barker. Hogan, 48 F. Supp.2d at 310. However, this is not a protectible element of Plaintiff's work. See id.; Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1999) (no copyright violation where both works "feature as central characters third — or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.").
In large measure, the similarities cited by Plaintiff in an attempt to support her claim are so strained that all they prove is how little real evidence there is of a copyright violation. Perhaps the clearest example of this is Plaintiff's wholly unsuccessful attempt to demonstrate that Arliss' sidekick Kirby was copied from the character Randee Crouch in Schmoozers.
Plaintiff's "expert" states that "Schmoozers proposes a supporting male agent character named Randee Crouch and Arli$$ executes a supporting male agent character named Kirby Carlisle who are substantially similar." Expert's Report, Snyder Aff. Ex. E at 23. When the two series are compared, all that this statement demonstrates is the sad fact that one can apparently get an "expert" to swear to anything.
In the Treatment, Randee Crouch is not a supporting character. He is the first character described in the Treatment and one of two equal partners in the StarTrack Agency. Like his lifelong friend Tym, he is a failed athlete who dresses in Armani suits. Kirby, on the other hand, is a supporting character who refers to Arliss as "boss" and is clearly in an inferior position within the Arliss Michaels Agency. In addition, unlike Arliss, who does dress in designer suits, Kirby usually appears in casual clothes. Far from being a failed athlete, Kirby is a former All-American and professional football player and he did not know Arliss until he became his fist client. No reasonable fact finder could conclude that the characters of Randee and Kirby are substantially similar.
Almost as unsuccessful is Plaintiff's expert's attempt to prove that Arliss's secretary Rita Wu is substantially similar to Maricait Barker. Aside from the fact that they are both female there is little that Rita and Maricait have in common. While Maricait is described as "a persistently horn-rimmed dishwater blonde who evokes the warmth and flaky brilliance of a young Diane Keaton," Treatment at 10, Rita is a with-it Asian American who would remind no one of Diane Keaton. Rita does wear dark rimmed glasses but they are stylish and would not ordinarily be described as horn-rimmed. While Maricait is described as "good-hearted, yet cerebral" and "happiest with her face in a book", Treatment at 10, no one but Plaintiff's expert would describe Rita as "cerebral" or think of her as happiest with her face in a book. In asserting that Rita, like Maricait, serves "as the `moral voice' of the series", Expert's Report at 31, Plaintiff's expert apparently overlooks those episodes in which Rita is shown attempting to overhear the conversations in Arliss's office by kneeling outside his office with a glass to the door, and other instances where she lies without compunction and sleeps with a variety of his clients.
Perhaps the greatest stretch in Plaintiff's argument is found in 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; he is simply mentioned in the description of the character Carter Palen Campbell as her romantic interest. One would have hoped that we were well past the day when someone would urge that it should be considered "creative" to conceive of an African American male involved in finance.
Plaintiff's attempt to pull isolated segments out of the fifty-nine Arli$$ episodes to prove copying of her creative work is equally unsuccessful. It is not surprising that in this substantial number of episodes there are instances where themes outlined in the Schmoozers Treatment are found present in a show about a sports agent. As Judge Haight observed in CK Comp. v. Burger King Corp., No. 92 Civ. 1488, 1994 WL 533253, at *4 (S.D.N.Y. Sept. 30, 1994):
`The essence of infringement lies in taking not a general theme, but its particular expression through similarities of treatment, details, scenes, events and characterization.' Reyher, 533 F.2d at 91. `[T]he law will not grant an author a monopoly over the unparticularized expression of an idea at such a level of abstraction or generality as unduly to inhibit independent creation by others.' Gund, Inc. v. Smile Int'l, Inc., 691 F. Supp. 642, 644 (S.D.N.Y. 1988), aff'd mem., 872 F.2d 1021 (2d Cir. 1989). Consistent with these principles, copyright law does not protect stock characters, incidents or settings that are as a practical matter indispensable or standard in the treatment of a given topic. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841 (1980).
Plaintiff also argues that two dramatic devices used in Arli$$ were copied from Schmoozers: 1) a character who talks directly to the audience, and 2) celebrities appearing as themselves. There is nothing novel about either of these devices. Ancient Greek tragedy employed a chorus that spoke to the audience and this device is far from unique in modern theater, film and television. Celebrities have appeared as themselves in numerous films and television shows and it is not surprising that someone creating a series about a talent agent would think it appropriate to have actual celebrities appearing as clients. Thus, even if HBO copied these devices from Plaintiff's Treatment there is no copyright violation.
It should also be noted that the use of a character speaking to the audience is substantially different in the Treatment than as employed in Arli$$. In the Treatment, Maricait is the character who addresses the audience, but she does so as "Audience Ambassador to Schmoozers", challenging "the reigning Dictatorship of Bad Taste." Treatment at 22a. While Arli$$ uses a voice over, it is Arliss reading an excerpt from his autobiography. This voice over is designed to contrast the image of himself that Michaels has set forth in the book with the sleazy conduct he engages in every day. Thus, the use of this device in the two works is entirely different and there is no reason to conclude that the use of this device in Arli$$ had its origin in the Schmoozers Treatment.
In sum, Plaintiff has failed to show that protectible portions of her Treatment were substantially reproduced in the Arli$$ series. Thus, even if we accept her assumption that the creators of Arli$$ had her Schmoozers Treatment and copied all of the similar ideas that may be found in the two works, Plaintiff cannot prevail.
Plaintiff's claims for unjust enrichment and conversion also fail as these claims arise out of an authorship interest in Arli$$ and are preempted under Section 301 of the Copyright Act. 17 U.S.C. § 301(a). See Archie Comic Publications, Inc. v. DeCarlo, 141 F. Supp.2d 428, 431-32 (S.D.N.Y. 2001), aff'd, No. 01-7132, 2001 WL 604184 (2d Cir. June 1, 2001); Lennon v. Seaman, 63 F. Supp.2d 428, 434-36 (S.D.N.Y. 1999).
For the foregoing reasons, Defendant's motion for summary judgment is granted and the complaint is dismissed.
SO ORDERED.