Recently, Home Box Office, Inc. (“HBO”), Dwayne Johnson and Mark Wahlberg were sued for copyright infringement over the HBO show “Ballers.” The lawsuit was brought by two writers who allege that the show “Ballers” copies elements from their trailer and treatment entitled “Off Season,” for which the Plaintiffs have submitted copyright applications. The Plaintiffs allege that they pitched their “Off Season” movie to one or more of the Defendants prior to the airing of the show “Ballers.” Plaintiffs also allege that Defendants were interested in producing “Off Season” but a deal was not able to get done since one or more of the Defendants required Plaintiffs to agree to remove their names from the credits.
The Complaint alleges that the show “Ballers” copied “certain aesthetic elements” from “Off Season,” namely “physical appearance of the characters and their vehicles, and plots, scenes, as well as story lines.” The Complaint sets forth numerous examples of the allegedly protectable elements of “Off Season” that “Ballers” copied. Some of the alleged similarities are that both are to take place in Miami, Florida, both include events during a football off season, and that there are several similarities in the characters and plot.
The Complaint alleges causes of action for copyright infringement and intentional infliction of emotional distress. Similarities between the two works is not enough on its own to support a finding of copyright infringement. First, the Plaintiffs will need to show that they are entitled to copyright protection and that the Defendants had access to the Plaintiffs’ copyrighted work. Further, the burden will be on the Plaintiffs to show that alleged similarities are substantial. In determining whether the show “Ballers” infringes upon the Plaintiffs’ work, the Court will likely look to see what elements of Plaintiffs’ work is entitled to copyright protection and what is not. Incidents, characters or settings which as a practical matter are indispensable in the treatment of a given topic, such as cars in a car chase scene, are not entitled to copyright protection. The Court will then look to see how much of the plot, characters, mood and theme of Plaintiffs’ work have been copied. The more elements that are taken the more likely that there will be finding a substantial similarity between the two works. However, as with any copyright infringement case, the focus will be on whether the allegedly infringing work copies protectable expression and not just ideas or non-protectable elements.
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Daniel Devine, Esq.
Santucci Priore, P.L.