Silas v. Home Box Office, Inc.

201 F.Supp.3d 1158

Everette SILAS, et al.

v.HOME BOX OFFICE, INC., et al.

Case No. CV 15-9732-GW(FFMx)

United States District Court, C.D. California.

Signed August 17, 2016

Kenechi Reuben Agu, Law Offices of Kenechi R. Agu, Torrance, CA, for Everette Silas, et al.

Kenneth David Kronstadt, Lee S. Brenner, Kelley Drye and Warren LLP, Los Angeles, CA, for Home Box Office, Inc., et al.

PROCEEDINGS: IN CHAMBERS—RULING ON DEFENDANTS' REQUEST FOR PUBLICATION OF ORDER ENTERED JULY 26, 2016 DISMISSING PLAINTIFFS' FIRST AMENDED COMPLAINT [37]

GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Defendants' Request for Publication of the Ruling on their Motion to Dismiss (see Docket No. 37) is granted. Attached hereto is the final ruling which has been amended to correct certain typographical errors.

I. Background

Everette Silas ("Silas") and Sherri Littleton ("Littleton") (collectively, "Plaintiffs") sue Home Box Office, Inc. ("HBO"), Stephen Levinson ("Levinson"), Mark Wahlberg ("Wahlberg"), Dwayne Johnson ("Johnson"), 7 Bucks Entertainment, Inc. ("7 Bucks"), and Leverage Management, Inc. ("Leverage") (collectively, "Defendants") for one claim of copyright infringement under 17 U.S.C. § 101 et seq. See generally First Am. Compl. ("FAC"), Docket No. 18.

A. Off Season

Plaintiffs are the owners of an original motion picture trailer (the "Trailer"), a shortened trailer (the "10 Minute Trailer"),¹ a screenplay (the "Screenplay"), and a treatment (the "Treatment") (collectively, the "Materials" or "Off Season ") all entitled Off Season. Id. ¶ 13. The Materials are based on the same plot and characters, and have each been registered with the U.S. Copyright Office. See id. ; Decl. of Lee Brenner in Support of MTD ("Brenner Decl."), Docket No. 23.

Off Season tells the story of Nathaniel Brandon Hall ("NBH"), the owner of a nightclub called "The Off Season." See Brenner Decl. Ex. 4 (the Treatment), Episode ("Ep.") 1.² NBH is also a professional football player who believes that he is an elite quarterback, despite some fans believing he is "washed up." See Brenner Decl. Ex. 3 (the Screenplay) at 6. NBH has a strong sexual aversion to African-American women, as evidenced by his often repeated motto, "No Black ho's [sic]." See, e.g., id. at 5.

The Off Season nightclub is filled with "payoffs, sex, violence, and drugs in excess." See Treatment Ep. 1. Viewers are introduced to The Off Season and its moral vices within the first five minutes of the Trailer, when NBH solicits two prostitutes in his nightclub and takes them into a VIP room. See Brenner Decl. Ex. 1 (the Trailer) at 1:25-4:48. Inside the VIP room are many of Off Season's other primary characters: (1) Bingo, NBH's older brother and a former football coach who is extremely violent; (2) Preach, a professional football player and pretty boy with a cocaine addiction; and (3) Lil' Bit, NBH's bodyguard and the moral compass of the show who encourages other characters not to do drugs. See generally Screenplay.

Off Season follows three main story lines. Foremost is NBH's ownership of The Off Season, including NBH's willingness to do whatever it takes to keep his nightclub operating smoothly, even if it requires bribing a detective to turn a blind eye and allowing his bouncers to beat up a cop. See Screenplay at 18, 21. NBH designed The Off Season to cater to professional football's elite clientele who need anonymity so that they may engage in their vices out of the public eye. See Trailer at 1:00-1:08.

A second story arc is the romantic interest between NBH and his ex-wife³ turned business partner, Annamaria.⁴ See generally Treatment. The romance between NBH and Annamaria is introduced with flashbacks of the two falling in love on beaches and in public parks. See Trailer at 17:17-18:35. Viewers learn that the two had a falling out when Annamaria cheated on NBH, after NBH abused steroids to the point that he could not perform in the bedroom. See Screenplay at 24. Further complicating this potential romantic interest is Courtney Devine ("Devine"), an ex-pornstar who is rumored to be NBH's girlfriend. See id. at 1, 15. Devine also acts as a madam, providing NBH with prostitutes who are guaranteed to be silent about the illegal activity that takes place at The Off Season. See id. at 4-7; Treatment Ep. 1.

The final story arc involves NBH's eighteen year-old daughter, Franee.⁵ See generally Treatment. NBH doesn't want Franee to live the life the that he lived and attempts to keep her away from his nightclub. See Treatment Ep. 3. Despite his protests, Franee is actively involved in making sure that the club operates smoothly. See Screenplay 3 at 26. Franee also strikes up a friendship with Devine, which makes NBH uncomfortable. See Treatment Ep. 4

B. Access to the Materials

Beginning in May 2007, Plaintiffs began sharing the Materials with colleagues in the television industry. See FAC ¶ 14. Plaintiffs shared the Materials with Steve Mayer, who in turn shared the Materials with Chris Albrecht, the CEO of HBO. See id. In May 2008, Plaintiffs shared the Materials with a group of producers—Richard Brustein ("Brustein"), Mark Ciardi ("Ciardi"), and Gordon Gray ("Gray")—and a production company, Mayhem Pictures, Inc. ("Mayhem"). See id. ¶¶ 15-17. Ciardi expressed interest in the Materials and shared them with Wahlberg and Johnson. See id. ¶¶ 18-19. Plaintiffs allege that Wahlberg gave a copy of the Materials to his manager, Levinson. See id. ¶ 20. Plaintiffs contend that the Materials were then given to 7 Bucks (an entity owned by Johnson) and Leverage (an entity owned by Levinson). See id. ¶¶ 9-10.

In or around December 2008, Wahlberg, Johnson, and Levinson confirmed their interest in producing Off Season with Plaintiffs. See id. ¶ 21. Mayhem drafted a "Producer Attachment Agreement," but Plaintiffs refused to sign because it came with a verbal condition requiring Plaintiffs to remove their names from the "Created By" credits. See id. ¶¶ 21-22. Negotiations for the production of Off Season ended soon after. See id. ¶ 22.

C. Ballers

On June 21, 2015, the pilot episode of the series Ballers aired on HBO, with Johnson portraying the lead character. See id. ¶ 25. Levinson, Wahlberg, Johnson, 7 Bucks, and Leverage were credited as producers. See id.

Ballers tells the story of Spencer Strasmore ("Strasmore"), a retired NFL linebacker who currently works for Anderson Financial, a finance management company with a newly opened sports division. Strasmore is haunted by fears that he might have suffered permanent brain damage from his years playing professional football and has a recurring nightmare of his career-ending hit that took another player out of the game. Strasmore made many financial mistakes during his career as a football player and counsels young players not to do the same. See generally Brenner Decl. Ex. 5 (Ballers ), Ep. 1.

Strasmore has two main clients who are integral to the Ballers storyline: Ricky Jerret ("Jerret") and Vernon Littlefield ("Littlefield"). Jerret is a flashy, loudmouthed wide receiver who was cut from the Green Bay Packers after he fought a patron at a nightclub. See generally id. After a short period of free agency, Jerret is signed by the Miami Dolphins and is forced to suffer humiliating hazing rituals at the hands of one of his new teammates. See, e.g., id. Ep. 4 at 18:28-19:00, 25:46-26:06 (implying that, as a prank, Jerret's teammates stole his Ferrari, drove it to an abandoned parking lot, took off the wheels, and placed the car on cinderblocks). Jerret starts the show with a Latina⁶ girlfriend, Anabella, but after Anabella learns that Jerret slept with a teammate's mother, she leaves him. See id. Ep. 6 at 21:17-25:31.

Littlefield is a defensive end for the Dallas Cowboys who is still playing on his rookie contract. See generally id. Ep. 1. Much of Littlefield's story arc focuses on negotiating with the Cowboys' management to secure a more lucrative second contract that would make Littlefield one of the highest-paid defensive players in the league. See generally Ballers. Littlefield is plagued by his entourage's lavish spending habits, most notably his childhood friend, Reggie. See id. Ep. 1 at 6:15-7:08; id. Ep. 2 at 5:58-7:41. Reggie is a constant thorn in Strasmore's side, primarily because Strasmore repeatedly counsels Littlefield to behave more intelligently with his money and cut off members of his posse, including Reggie. See generally id. Ep. 3.

Strasmore's partner at Anderson Financial is Joe Krutel ("Krutel"). See id. Ep. 1 at 7:09-8:55. Krutel is a geeky white financial advisor who serves as comic relief to Strasmore's more serious and aggressive character. See id. Although Strasmore has humorous moments and Krutel has serious moments, a large portion of Ballers' comedic effect comes from Krutel and his juxtaposition with Strasmore. See generally Ballers.

Initially, the main storylines in Ballers consist of: (1) Jerret signing with a new team and his inability to bond with his new teammates; (2) Littlefield negotiating a new contract and struggling with the financial success that comes with being a young professional football player; and (3) Strasmore's and Krutel's career advancement within Anderson Financial. See generally id.

D. Defendants' Motion to Dismiss

In their FAC, Plaintiffs allege that Ballers borrows heavily from the Materials. See FAC ¶ 26. Specifically, Plaintiffs allege that Ballers contains "aesthetic elements, including, without limitation, physical appearance[s] of the characters and their vehicles, [ ] plots, scenes, as well as story lines [that] are virtually identical to the Materials."Id.

On April 15, 2016, Defendants filed a Motion to Dismiss Plaintiffs' FAC. See generally Mot. to Dismiss ("MTD"), Docket No. 21. Along with the Motion, Defendants also filed a Request for Judicial Notice. See generally Req. for Judicial Notice ("RJN"), Docket No. 24. Plaintiffs filed their Opposition Brief on May 13, 2016, see generally Opp'n Br. ("Opp'n"), Docket No. 28, and De...