This week, I continue my written interview with prominent author and performance coach, Denise Shull, who took on Showtime and the creators of the hit show “Billions” in the Southern District of New York and the Second Circuit over their mistreatment of her and alleged violation of her IP rights. While her case proved unsuccessful, she has graciously offered to discuss her experiences and frustrations with the litigation process on these pages. As I indicated last week, I have no stake in the outcome of her dispute with “Billions” as anything other than an interested observer — and if someone from Showtime Legal, one of the executive producers, or the outside legal team wants to participate in a similar interview for this audience, the invitation remains open.
Now to the remainder of my interview with Denise. As usual, I have added some brief commentary to Denise’s answers below but have otherwise presented her answers to my questions as she provided them.
Gaston Kroub: What do you suspect was behind the refusal of the “Billions” team to either settle with you or live up to their promise of hiring you to consult for the show?
Denise Shull: In the big picture, originality is what they are selling. If they have original ideas, then they are marketable creators. If they are simply taking from others, then not only do they have to pay in dollars, but they would pay in reputation.
Also, in February of 2016, I was told by a very senior executive at Showtime that there was a battle between the creators over money. I suspect I was also caught up in that.
GK: As I mentioned when I profiled Denise’s case for the first time on these pages, the role of emotion in IP cases is an oft-underestimated driver of behavior that can seem to an outside observer as irrational. At the heart of things here, at least in my view, is an unwillingness by the showrunning team to reckon with the way they led Denise into thinking that there was a continuing role for her to play with respect to the show. But it makes sense that if communication between the showrunners was not ideal with each other, that outside people would be even likelier collateral damage to whatever disputes plagued the creative team internally. On top of that potential dynamic, it can be very difficult as an IP plaintiff to get to a reasonable settlement once a legal team is brought in for the express purpose of getting the case tossed with early motion practice. Was a simple and fair settlement possible here that would have saved the parties time, expense, and aggravation? Reasonable minds could differ on the answer to that question. For her part, however, Denise’s answer suggests that external hurdles to such a settlement made such a result a major challenge in her case.
GK: What was most surprising to you about the litigation process?
DS: To be blunt, how much like the show it seems to be.
For example, I understood the pleading stage to be about “is this complaint plausible?” Judge Daniels ultimately determined, partially through a “quick internet search,” that my work was generic and therefore my claim implausible. Yet it’s my understanding that these sorts of judicial notices normally aren’t for disputable facts and require opportunities for the plaintiffs to respond. We weren’t offered that. Why? Why does the indisputable fact that the showrunners, actress, and marketing each requested my help, not supersede this internet search?
Furthermore, every single instance of dialogue analysis contained substantive errors. Alpha in the hedge fund world is a specific arithmetic measure of performance yet the SDNY declared I could not copyright the idea of an alpha male. Another particularly egregious example is the court’s misunderstanding of what happened [in Season 1’s 11th episode] “Magical Thinking.” The money losing was due to unconscious emotion being acted out with the market working like a Rorschach blot. The court said Axe’s behavior was conscious!
Or take the eating, sleeping, and exercising verbiage. We were saying that the fact both Wendy and the fictional Denise ask the question about physical aspects as their first coaching words and the fact that they do so in the same order is suspicious. Add in that the character in her background bio is from Ohio. There is less than a half of 1% chance these elements occurred by chance.
I could go on, but last, final judgment was entered in three days. I’m told this is unusually brief timing. We were then forced to try to vacate that judgment which created a much higher bar for the proposed first amended complaint that was ultimately denied as futile by the Second Circuit despite having two dozen pieces of evidence showing actual public confusion. How often is a plaintiff prevented from filing even one amended complaint?
When every single thing goes against you, when rules and norms are broken all in the defendant’s favor, one has to conclude that despite a 34-page opinion, it wasn’t even remotely a fair fight — just like in the show.
GK: One can definitely sympathize with Denise’s viewpoint, even if one also agrees that cases like hers have a high degree of difficulty, especially in the Second Circuit. The reality is that IP causes of action can be blunt tools to try to get recompense for what may be very specific and nuanced acts of trespass, making getting a favorable result against a motivated and well-resourced defendant a challenge — even when it feels like there are a plethora of facts that support the idea that the plaintiff was mistreated in some way. In Denise’s case, I can only hope that despite the fact that her litigation results were not as hoped, to say the least, that she can at least find comfort in the fact that she saw the legal process through to as final a decision as one can expect to receive in an IP case.
My thanks to Denise for the insights and cooperation, especially so close to her receiving the negative news about her case from the Second Circuit. I wish her the best of luck with continuing to build her performance coaching practice; there is a lot of beneficial work she could probably do with hard-charging IP litigators to help maximize their performance. Moreover, I greatly respect her willingness to pursue her litigation goals in the defense of her professional and personal reputation, an effort that I think should only raise and benefit her profile, even though the case itself proved unsuccessful. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at email@example.com or follow him on Twitter: @gkroub.