BY JAIME RAGHU
On Dec. 31, 2018, professional performance coach and author of the book “Market Mind Games,” Denise Shull, filed suit against the creators of the hit premium television series “Billions” and the exhibitor of the series, Showtime. Shull alleged that “Billions” infringed the copyright in her scientific book and that the show’s character Wendy, a psychiatrist and performance coach, misappropriated Shull’s “style and persona,” in addition to other state and federal claims. Shull v. TBTF Productions Inc., No. 18 CIV. 12400 (GBD), 2019 WL 5287923, at *1 (S.D.N.Y. Oct. 4, 2019).
Judge George Daniels of the U.S. District Court for the Southern District of New York disagreed and dismissed the action with prejudice, noting that “[t]he problem here, as Defendants aptly point out, is that these works do not seem to resemble each other in the least.”
Central to the lawsuit are the two works: Shull’s book, “Market Mind Games,” and the premium television series, “Billions.”
“Market Mind Games” explains the basics of neuroscience and describes a trading system that Shull claims is designed to take full advantage of one’s emotional assets. Shull’s theories are based on the academic disciplines of neuroeconomics, modern psychoanalysis, and neuropsychoanalysis.
To explain these theories, the author presents a series of lectures, workshops, and seminars given by a fictional version of herself based on the “typical lectures, workshops and consulting programs” she gives in real life. Shull incorporates other fictional characters as a way to transition the book through her typical academic-style lectures.
Besides Shull, the main character in the book is Michael Kelly, a well-to-do man making his way through his career. Michael starts as a doctoral candidate who then works at a Wall Street firm before starting his own hedge fund, all while participating in group lectures by Shull’s character. After Michael starts his own fund, Shull’s character joins as its in-house performance coach, where she and Michael engage in a single one-on-one counseling session about Michael’s questionable career choice.
“Billions,” by contrast, is a highly acclaimed, hour-long “complex drama about power politics in the world of New York high finance. Shrewd, savvy U.S. Attorney Chuck Rhoades … and the brilliant, ambitious hedge fund king Bobby ‘Axe’ Axelrod … are on an explosive collision course, with each using all of his considerable smarts, power and influence to outmaneuver the other.”
Axe went from working class to billionaire founder of his hedge fund, Axe Capital, using both legal and illegal means. Chuck, who grew up in a privileged New York family, is the U. S. Attorney for the Southern District of New York, known for his perfect record in prosecuting financial crimes—but he also has a flexible moral compass. The show’s early seasons chronicle the showdown between Axe and Chuck.
Complicating the battle between Axe and Chuck is Wendy, who is married to Chuck but has worked with Axe for 15 years as an in-house psychiatrist and performance coach. Wendy and Chuck have two children and live in a multimillion-dollar Brooklyn townhouse. Wendy’s career supports their lifestyle. The power dynamics between Chuck and Wendy are defined by her first introduction to viewers—through their sadomasochistic sex lives with Wendy as the dominatrix and Chuck as the submissive.
Wendy also has a close relationship with Axe, whom she has known since before she married Chuck. In Wendy’s role as in-house performance coach, she works with Axe Capital employees in one-on-one sessions, most often with Axe himself. Wendy again is the dominant one, going toe-to-toe with Axe on multiple occasions. Chuck and Axe consistently question Wendy’s loyalty to each of them as they try to outmaneuver each other.
Shull claims that “Billions” is an “unauthorized” use and “derivative work” of her book because both depict a female financial performance coach who explains how a trader’s emotions can affect trading decisions. According to Shull, in 2012, defendant Andrew Ross Sorkin, one of the writers for “Billions,” invited her to be a guest on his show “Squawk Box,” where they discussed her book.
Shull alleges that three years later, Sorkin emailed her and introduced her via email to the actress cast as Wendy in order to discuss the character. Shull then alleges she had an initial meeting with the actress playing Wendy and two “Billions” creators, which she claims “was the beginning of the[ir] relationship,” the “terms [of which] would be negotiated subsequently.” No terms were ever discussed or agreed upon.
Shull brought claims for direct, contributory, and vicarious copyright infringement and a variety of state-law claims.
Defendants moved to dismiss the complaint, arguing that the copyright-infringement claims fail as a matter of law because the works are not substantially similar and that the state-law claims are either preempted by the Copyright Act or, alternatively, fail to state a claim.
The court granted the motion in full, finding that “Market Mind Games” and “Billions” were not substantially similar under any applicable test. The court also dismissed Shull’s claims for implied-in-fact contract, unjust enrichment, and Section 51 for failure to state a claim and held that the other state-law claims were preempted by the Copyright Act because they were based on the same alleged misappropriation as Shull’s copyright claims.
The Decision: Copyright Claims
The court applied three tests—the discerning ordinary observer test, the qualitative/quantitative test, and the fragmented literal similarity test—to determine whether “Market Mind Games” and “Billions” were plausibly substantially similar. After reviewing the works, the court explained that under any test “these works do not seem to resemble each other in the least” and dismissed the copyright claims with prejudice.
Under the discerning ordinary observer test, the court asked whether “the ordinary observer, unless he or she set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Comparing the protectible elements of the works, the court found that the “total concept and feel, theme, characters, plot, sequence, pace, and setting” of the two works “differ greatly.” As Judge Daniels put it, “[a]nd the issue does not lie in the fact that one is a book and one is a television show, but the fact that Plaintiffs’ work is an academic work which interweaves fiction to better help the reader understand Shull’s ideas, while Defendants’ work is a television show, based in the Southern District of New York, to demonstrate the drama that lies in the age-old trifecta of money, power, and sex.”
Nor was there substantial similarity under the remaining two tests—the quantitative/qualitative approach, which addresses “the amount of copying not only of direct quotations and close paraphrasing, but also of all other protectible expression in the original work, Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 534-35 (S.D.N.Y. 2008), as well as the fragmented literal similarity test, where substantial similarity may be shown by demonstrating “the copying of even a relatively small quantitative portion of the pre-existing work . . . if it is of great qualitative importance to the [pre- existing] work as a whole.” TufAmerica Inc. v. Diamond, 968 F. Supp. 2d 588, 597-98 (S.D.N.Y. 2013).
In analyzing each, the court focused on Shull’s claim that Wendy copied the character of Shull in “Market Mind Games.” The court explained that Shull’s character was “not given much of a persona” in “Market Mind Games” because the purpose of that character was to explain her theories. Shull, 2019 WL 5287923, at *11. The court characterized Shull’s claim that Wendy and Shull were substantially similar as “essentially argu[ing] that because Wendy is also a female in-house hedge fund performance coach, Defendants copied her fictionalized character of herself.” The court quickly rejected this argument, finding that a femalein-house performance coach is “not a copyrightable idea,” because if it were, Shull would “essentially [be] grant[ed] . . . a monopoly on the entire subject matter of the female performance coach.”
The Decision: State Law Claims
The court then found that Shull’s claims for unfair competition, deceptive business practices, and lack of accounting all arose from defendants’ alleged unauthorized use of “Market Mind Games” and thus were preempted by the Copyright Act. The court found that the remaining state-law causes of action for implied-in-fact contract, right of publicity under Section 51, and unjust enrichment were not preempted by the Copyright Act, as these claims did not derive entirely from the alleged misappropriation of her work, but dismissed these claims on the merits.
Of great importance, in finding that Shull failed to state a claim for implied-in-fact contract, the court distinguished the 2nd Circuit’s holding in Forest Park Pictures v. Universal Television Network Inc., 683 F.3d 424 (2d Cir. 2012), which found that the plaintiff’s claim for breach of implied-in-fact contract was neither preempted nor subject to dismissal where the plaintiff had submitted a written idea for a television series and alleged an implied promise to pay reasonable compensation if the idea was used.
The court agreed that Shull’s implied-in-fact contract claim was not preempted but distinguished Forest Park because in this case Shull merely consulted on “Billions.” She had not submitted a written idea, and she had failed to allege a required element of her claim—that “both parties understood that there was an agreement.” Shull, 2019 WL 5287923, at *15.
Moreover, the court found Shull’s counsel’s “uncertain” response of “yes and no” to the court’s question of whether there was “some agreement that Shull would be compensated for her services” was evidence “denot[ing] that there was no manifestation” or “inferences” of mutual assent, a required element of any contract, implied or express. For the same reasons, the court dismissed Shull’s unjust enrichment claim.
Finally, the court dismissed Shull’s right-of-publicity claim under Section 51, which asserted that the defendants benefited from editorial articles about Shull which “piqued interest in ‘Billions'” and made the story more believable, because any article allegedly written by the defendants that used Shull’s name, picture, or persona did not advertise or promote “Billions.”
Shull has filed a post-judgment motion requesting that the district court alter, amend, or vacate its decision dismissing the action and requesting leave to file an amended complaint.