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Off Season is Looking Bright for HBO: District Court Dismisses Case Against Creators of “Ballers”

Source: Grill IP patents news

Football-HBO-Ballers-Infrigement-DismissedFootball, drama, and scripts: these elements all factor into a charge of copyright infringement against Home Box Office, Inc. In late June, California District Court dismissed a claim of copyright infringement against the creators of “Ballers,” an HBO television series about a retired football player who offers financial management advice to current players. In Silas v. Home Box Office, Inc., the Court found no substantial similarities between “Ballers” and “Off Season,” the plaintiffs’ dark drama focusing on the activities of an ex-football player in charge of an illicit nightclub. The case highlights elements of the extrinsic similarity test, which dissects protectable elements of the works in question, assessing whether their similarities constitute infringement.

    Plantiffs Everette Silas and Sherri Littleton developed the screenplay, trailer and treatment of the proposed film “Off Season,” which follows the shady dealings of a retired, club-owning footballer. They sued Home Box Office Inc., 7 Bucks Entertainment Inc., Leverage Management Inc., Stephen Levinson, Dwayne Johnson and Mark Wahlberg for infringement over the defendants’ television show. In granting the defendants’ motion to dismiss, the District Court rejected the Silas and Littleton’s call for the court to solely examine the script of “Ballers,” opting to assess the show as a whole. In addition, the Court decided to forgo elements outside of the complaint, like the fact that prior works focusing on ex-football players frequently involve glitzy cars, cocky attitudes, and hip-hop tracks. According to the Court, “these elements are “not verified by simply watching television for any length of time.”  

Since the defendants’ motion did not contest an intrinsic similarity of access, in other words, the fact that “Ballers” creators had access to “Off Season,” the Court applied an extrinsic similarity test and an inverse-ratio rule. This test involves the comparison of “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationship between major characters.” The rule demands that where there is a high degree of access by the makers of the accused work, a low degree of similarity between the works must exist. The protectable elements of “Ballers” and “Off Season” under consideration included: plot, characters, dialogue, setting, theme, and pace.

    With regards to plot, the plaintiffs held that “generic similarities” were evident, as both works follow ex-athletes who double as businessmen and mentors to younger players. The Court deemed that this allegation misrepresented the nature of both works, as “Ballers” contains a protagonist employed by a wealth management firm, as opposed to the nightclub activities that occupy the life of the main character in “Off Season.” Further, the relationships between both protagonists have with their fellow players and mentees differ in purpose, with “Off Season” depicting friendships rife with drugs and prostitution, while HBO’s series concerns professional relationships centred on financial consulting.

    While both works are set in Miami, no such setting is subject to any copyright ex-facie. “Ballers” takes place in locales across the city, whereas it’s rival is set primarily in a single nightclub. In terms of character similarities, courts are particularly strict, only “especially distinctive” figures are subject to protection. Since the plaintiffs failed to allege any sufficient similarities between the characters in both works, no detailed character assessment was undertaken. According to the Court, the plaintiffs also did not argue that either work has an “overarching message or underlying meaning.” The dark mood of the plaintiffs’ screenplay contrasted fairly starkly with the comedic undertone of the television series. Silas and Littleton did stress that the works shared the same pace, as both take place during football off-season. This claim was rejected, since the pace was flowing “necessarily or naturally from a basic plot premise” and is insufficient for any finding of infringement.

    On the whole, California’s District Court determined that all the actual similarities between “Off Season” and “Ballers” exist with respect to unprotectable elements: basic plotlines, scenes-a-faire, etc. Referring to the Ninth Circuit’s decision in Metcalf v. Bochco (2002), the Court reasoned that the plaintiffs’ case did not pass the extrinsic test according to the “totality of similarities” assessed. Hence, the complaint was dismissed without leave to amend. Looks like HBO’s off-season is looking brighter than the competition’s in this case.

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