Just more than a week after Season 2 of Ballers kicked off on HBO, today the network, star Dwayne Johnson and executive producers Mark Wahlberg and Stephen Levinson scored a touchdown against claims the series was based on Everette Silas and Sherri Littleton’s Off Season. “The themes in the two concepts are widely different,” said Judge George Wu at a Monday morning hearing in downtown L.A after granting a motion from the premium cabler and the other defendants to dismiss the claims – though not without a bit of fun at Ballers expense.
Showing the lawsuit was no laughing matter for HBO, the cabler’s SVP and Chief Counsel, Litigation Stephanie Abutyn flew into town from NYC to attend this morning’s hearing in person, along with local legal reps from all parties.
The plaintiffs first filed their $200 million copyright infringement complaint on December 17 last year, alleging that “stories, character traits, scenes, and incidents portrayed in the two works, Ballers and Off Season, are, in many respects, virtually identical and strikingly similar.” They followed up with an amended complaint in mid-March, and on April 15, the premium cabler, its star and executive producers tossed back a motion to have the whole thing dismissed.
In a tentative ruling released in the court before the hearing and finalized after arguments from the lawyers involved, the federal judge noted that the similarities between Ballers and Off Season did not rise to the standard of copyright infringement but merely had general expressions that you might find in any project where football players were a primary element. Additionally, Judge Wu made a point of noting that the plaintiff’s claims of similarities did not hold up under examination and were, in fact, often taken out of context.
In a playful mood throughout today’s proceedings, Judge Wu let slip at one point that “the burden was watching…” before cutting himself off with a laugh. “Oh, I shouldn’t have said that,” he immediately added of his obviously play on the legal term of “burden” and his viewing of Ballers itself.
In their original jury-seeking filing, Silas and Littleton put forth a convoluted path by which their registered screenplay and trailer for Off Season allegedly got in the hands of the Ballers creators, had a deal fall apart and then saw the Johnson-led series debut on June 21, 2015. With claims of involvement by then-HBO boss and now-Starz chief Chris Albrecht and IMG board member Steve Mayer, the sequence of events never actually seemed to have Ballers’ core creative team in a meeting with the duo or directly expressing an interest in Off Season.
Citing that the two properties shared “common elements” at best, lawyers for HBO, Johnson, Wahlberg and Levinson bluntly stated in their April motion to toss the case that “the Off Season works, on the one hand, and Ballers, on the other, are so radically different that there can be no reasonable finding of substantial similarity as a matter of law.” The defendants’ 32-page dismissal filing added that “the works bear absolutely no similarity in their expression – i.e., in plot, theme, dialogue, mood, setting, pace, characters and sequence of events.”
HBO and the Ballers boys are represented in the matter by Kenneth David Kronstadt and Lee Brenner of Santa Monica’s Kelley Drye and Warren LLP. Kenechi Reuben Agu of the Torrance Law Offices of Kenechi R Agu is representing the Off Season duo.