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Tag Archives: Off Season

HBO prevails in copyright infringement lawsuit over the show “Ballers”

Earlier this week, the Central District Court of California dismissed a lawsuit brought by screenwriters Everette Silas and Sherri Littleton (“Plaintiffs”) against HBO, Dwayne Johnson and Mark Wahlberg, among others (“Defendants”).[1] As discussed in a previous blog entry, Plaintiffs brought a lawsuit against the Defendants claiming that Defendants committed copyright infringement by producing the HBO show “Ballers,” as a result of alleged similarities from Plaintiffs’ trailer, screenplay and treatment entitled “Off Season.”[2] The Plaintiffs’ Complaint alleged that the show “Ballers” contains several similarities to Plaintiffs’ “Off Season,” namely the physical appearance of characters and their vehicles, plot, scenes and story lines.[3] The Defendants filed a motion to dismiss the Complaint arguing that, while Defendants had access to Plaintiffs’ “Off Season,” the two works are not sufficiently similar to permit a finding of copyright infringement.[4]

The Plaintiffs attempted to have the Court limit its analysis of the similarities between the two works by only considering the script for “Ballers” instead of the actual television series.[5] The Court rejected Plaintiffs’ position and instead took into consideration the “Ballers” television series.[6] The Court compared the plot, setting, characters, theme, mood, dialogue and pace of the two works to see if “Ballers” was substantially similar to Plaintiffs’ “Off Season.”[7] In doing so the Court found that two works were not substantially similar noting that while there were generic similarities in the two works, several of the specific details were different, namely that the main star of “Ballers” is a retired football player and involved in a wealth management group, while the main star in “Off Season” is an active football player and is a nightclub owner, even though both of the works take place in Miami, Florida and are set in the football offseason.[8] The Court then granted Defendants’ motion to dismiss the Complaint and found that the dismissal would be with prejudice since the defects in Plaintiffs’ Complaint could not be cured by amendment.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Silas, et. al. v. Home Box Office, Inc., et. al., No. CV-15-9732-GW (FFMx) , at Docket Entry No. 32 (July 25, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.

Dwayne Johnson and Mark Wahlberg sued over copyright infringement for show “Ballers”

Recently, Home Box Office, Inc. (“HBO”), Dwayne Johnson and Mark Wahlberg were sued for copyright infringement over the HBO show “Ballers.”[1] 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.[2] 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.”[3] 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.[4]

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.”[5] The Complaint sets forth numerous examples of the allegedly protectable elements of “Off Season” that “Ballers” copied.[6] 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.[7]

The Complaint alleges causes of action for copyright infringement and intentional infliction of emotional distress.[8] 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.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, Everette Silas, et. al. v. Home Box Office, Inc., et. al., Case No. 2:15-cv-9732  at Docket Entry 1 (C.D. Cal. Dec. 17, 2015).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.