HBO’s Ballers is coming back for a second season, but the nearly six-month-old $200 million copyright lawsuit against the Dwayne Johnson-starring NFL comedy should be sent off the field, the premium cabler says. Along with EPs Johnson, Mark Wahlberg and Stephen Levinson, HBO filed a motion of dismissal in federal court on April 15 against Everette Silas and Sherri Littleton’s claims that the series was lifted from their Off Season work.
“The Court need do nothing more than review the works themselves to conclude that Plaintiffs’ complaint should be dismissed,” says the terse motion from the defendants’ lawyers from Kelley Dryw & Warren LLP (read it here). “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 32-page filing adds that “the works bear absolutely no similarity in their expression – i.e., in plot, theme, dialogue, mood, setting, pace, characters and sequence of events.”
Aiming for unspecified punitive, compensatory and special damages, the essentially credit-less Silas and Littleton claimed in their copyright infringement complaint of December 17 that the “stories, character traits, scenes, and incidents portrayed in the two works, Ballers and Off Season, are, in many respects, virtually identical and strikingly similar.” In their jury-seeking filing, the duo laid out a convoluted path by which their registered screenplay and trailer for Off Season supposedly got in the hands of the Ballers creators, had a deal fall apart and then saw the Johnson-led series debut on June 21. With alleged appearances by then-HBO boss and now-Starz chief Chris Albrecht and IMG board member Steve Mayer, the path laid out never seems to have Ballers’ actual creative team in a meeting or directly expressing an interest in Off Season.
“These substantially similar elements, coupled with the Defendants’ direct access to the Materials, leaves little doubt that numerous elements of Ballers were copied from Off Season,” Silas and Littleton’s lawyer Kenchi Agu insisted in last year’s initial filing.
To that, the response last week from the cabler and crew basically asserts that any similarities between Ballers and Silas and Littleton’s work consist of “common elements” found in several pro-football shows like EPSN’s Playmakers from 2003 – and that’s not covered by copyright laws. “Plaintiffs’ self-serving chart of purportedly similar elements – consisting solely of unprotectable elements and manufactured comparisons – cannot create substantial similarity where none exists,” attorney Lee S. Brenner says. “Sometimes there are close calls in copyright cases. This is not one of those times.”
HBO, Johnson, Wahlberg, Ballers creator Levinson and the other corporate defendants want a hearing on July 11 in downtown L.A. in front of the often highly deliberative Judge George Wu on their motion to end this matter.
“Like the many other cases before it which have been dismissed on the pleadings after the court compared the works at issue, Plaintiffs’ claim here is premised ‘partly upon a wholly erroneous understanding of the extent of copyright protection,’” their filing concludes.
While the Ballers team is seeking that July 11 hearing date, no exact date has been given yet by HBO of when the series is coming back for Season 2 – but it’s in July too we hear.