In considering whether Andrew Ross Sorkin & co. got a little too copy-paste-y in conjuring the character of hedge fund performance coach/dominatrix Wendy Rhoades, U.S. District Judge George Daniels may not have subjected himself to all 55 soapy, interminable hours of Showtime’s “Billions.” Well, federal appeals court judges Debra Ann Livingston, Robert Sack and Denny Chin did, and it turns out you don’t have to watch the unwatchable to know that being a woman and having a job, even in that combination, are (as they strongly suspected) not copyrightable, even if the fictitious character in question is wearing your clothes.
"Even assuming that the district court erred in consulting the internet," Daniels correctly dismissed the copyright claims because the works weren't similar, the panel said.
"The plot of Market Mind Games, to the extent there is one, is wholly dissimilar from that of Billions," the panel, comprised of Chief U.S. Circuit Judge Debra Ann Livingston and U.S. Circuit Judges Robert Sack and Denny Chin, said. "Likewise, the similarities that exist between Dr. Rhoades in Billions and the fictional version of [Denise] Shull in Market Mind Games — namely their gender and occupation — are generalized and non-protectible."
And, what’s more, they don’t want any judge to have to go through what they did—watching “Billions” ever again.
The court also blocked Shull from amending her complaint to add a false endorsement claim. Shull couldn't show the consumer confusion necessary for such a claim, the court said, based on differences between her character and Dr. Rhoades.
Luckily for Shull, however, there’s a higher legal authority than the Second Circuit Court of Appeals that’s not quite as interested in boring questions about whether two similarly-dressed women are similar enough to copyright.
Shull's attorney Avram Turkel of Borstein Turkel said Shull was disappointed in the decision, and that the "court of actual public opinion" recognizes that "Billions" is substantially similar to her work.
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