It is exactly the kind of result that Billions‘ Bobby Axelrod would like but not really appreciate.
A federal judge has granted Showtime’s motion to toss out a copyright infringement case from well-known performance coach Denise Shull against series creators Brian Koppelman, David Levien and Andrew Ross Sorkin, the premium cabler itself, executive David Nevins and the pay TV network’s corporate parent CBS.
However, as deeply and harshly as U.S. District Judge George Daniels eviscerates the suit filed earlier this year, which claims the Dr. Wendy Rhoades character portrayed by Maggie Siff was “ripped off” Shull herself, lawyers for the author say this isn’t over by a long shot.
“We have reviewed the Court’s decision and respectfully disagree with the court’s ruling,” attorney Michael James Malory told Deadline today about the October 4 decision by Daniels. “Ms. Shull intends to file an appeal,” the NYC-based CKR Law LLP lawyer added.
“We expect that Ms. Shull will issue a further statement after the court conference scheduled for tomorrow.” (That motion to adjourn conference has been canned now that the case has been dismissed.)
Like Axelrod, the Axe Capital founder played by Damien Lewis on Billions, Showtime took a different approach in what they view as more than a transactional ruling late last week. You could almost say it was a rewriting of sorts of the series mantra of “leave them with nothing,” almost.
“We are pleased that the court agreed with our position all along that Billions did not infringe on Denise Shull’s book and that the characters of Wendy Rhoades and Denise Shull ‘do not resemble one another in the slightest,’v” the cabler said Monday.
To be clear, as that greater hustler Richard Nixon would say, Daniels goes a little bit harder and deeper than that over the copyright claims, which makes the form any appeal might take all the more intriguing.
“The problem here, as Defendants aptly point out, is that these works do not seem to resemble each other in the least,” says the judge, while noting that Shull and the Billions team met on several occasions in the process of developing the show and that the performance coach was on CNBC’s Squawk Box with Sorkin to talk about her 2012 book, Market Mind Games.
“And 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,” Daniels asserts in the order (read it here).
“Although Shull is well known in the performance coaching world, it cannot be said that she can copyright the idea of a female in-house performance coach,” the judge goes on to say in his detailed 34-page memorandum decision and order. “Inherent in a copyright is the grant of exclusivity. Granting Plaintiffs exclusivity in this particular idea is precarious, as it would essentially grant Shull a monopoly on the entire subject matter of the female performance coach until the expiration of her copyright.”
Then comes that phrase Showtime likes so much: “A finding of copyright infringement in this case would serve to be even more troubling, as the character of Denise and Wendy do not resemble one another in the slightest.”
We’ll see what argument Shull’s appeal resembles and articulates when it is filed. She has until November 6 to file that appeal.
Showtime, CBS and the Billions EP are represented by Elizabeth A. McNamara and a team from Davis Wright Tremaine LLP’s New York office.