Talk about a double whammy for Stephanie Counts and Shari Gold in their legal action alleging that New Girl was ripped off by Fox, WME, Peter Chernin and Elizabeth Meriwether from their 2006 script. This week, the duo was ordered by a federal judge to pay up nearly $800,000 in legal fees to the defendants.
“The Court GRANTS Defendants’ motions for attorney’s fees,” wrote U.S. District Judge Stephen V. Wilson on Wednesday (read the ruling here). “The Court awards the Fox Defendants $548,772.77, and awards the WME Defendants $220,063.75.” He added, “The parties shall file a proposed amended judgment consistent with this Order.” The judge also sent up a flare to those who may be considering similar copyright suits. “An award of attorney’s fees would also serve the purposes of compensation and deterrence in that it will encourage valid copyright owners to fight for the protection of their works, and discourage other plaintiffs from filing similarly meritless copyright suits.”
The pricey order comes just over 2 ½ months after the Square One writers came up short and saw their nearly 2-year copyright case tossed out by the same judge. Having been filed in January 2014, tossed in October 2014 and then refiled by Counts and Gold again last year, the case claimed through a sequence of convoluted events that their Square One script ending up in the hands of pre-merger Endeavor agents who “widely circulated” it and then got it to Chernin and Meriwether. That path led to the former Fox exec and the producer supposedly creating New Girl, which debuted on Fox in 2011 and is now in its fifth season.
Counts and Gold’s initial multi-claim complaint asserted that Square One, which has a women moving in as the roommate to three men, has so many similarities with the Zooey Deschanel-starring New Girl “that independent creation was obviously impossible.” In an amended complaint, the duo said the first two versions of their Square One script were specifically used for the New Girl pilot and the show’s first season in 2011.
Late last year, after a series of highly charged hearings and depositions, Wilson decided enough was enough.
“Plaintiffs have not introduced evidence demonstrating a triable issue of fact regarding Defendants’ access to Square One,” the judge said in a ruling on the second to last day of 2015. “Moreover, even assuming arguendo that a triable issue of access exists, no reasonable jury could conclude that there are substantial similarities in the plot, sequence of events, characters, mood, pace, setting, theme or dialogue between Square One and New Girl. For these reasons, the Court grants Defendants’ motion for summary judgment.”
On January 13, the Fox defendants filed paperwork looking to get their legal fees paid. While Counts and Gold argued that the costs were unreasonable, Wilson again obviously disagreed — and sent up another discouraging flare in the footnotes of this recent ruling. “Although Plaintiffs contend they are not independently wealthy, they have not cited any authority suggesting that a losing party’s inability to pay should preclude an award of fees where the claim was objectively unreasonable,” said Wilson in the footnotes of the March 9 ruling. “If the rule were otherwise, indigent plaintiffs could bring wholly frivolous suits against successful authors in the hopes of negotiating a nuisance settlement, without any concern about having to pay attorney’s fees if the case were to go forward. This result would be contrary to the purposes of the Copyright Act.”
David Aaron Grossman, Eric Schwartz and Jonathan Zavin of the NYC offices of Loeb & Loeb represented Fox, Chernin and Meriwether in the case. Michael Kump and Gregory Philip Korn of Santa Monica’s Kinsella Weitzman Iser Kump & Aldisert LLP represented WME. Francis Malofly of Media, PA’s Francis Alexander LLC and Andrew T. Ryan of Century City’s Ryan Law PLC represent Counts and Gold.