IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks- March 29, 2012

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McGee v. Andre Benjamin 3000, USDC D. Massachusetts, March 20, 2012
 Click here for a copy of the full decision.

  • District Court finds that plaintiff failed to establish probative similarities in the protectable elements of his treatment for an animated television series and defendants’ television show sufficient to establish actual copying, and dismisses plaintiff’s copyright infringement and breach of implied contact claims.

Plaintiff Timothy McGee created a treatment for an animated television series called The Music Factory of the 90’s, about a central character, Tony "The Play Maker" Rich, a corporate attorney from a rich family turned aspiring music producer who opens a music production company in Atlanta, and his interactions with five young characters, musicians, technologists, would-be executives and other artists. Plaintiff registered three copyrights for work related to The Music Factory in 1997 and 1998, including an original eight-page treatment, and two other updates to the treatment. He pitched The Music Factory to The Cartoon Network in 1997 for use in its Adult Swim programming, but was told that the network was not interested. In 2006, defendants launched Class of 3000, an animated series chronicling the adventures of six musical outcasts -- students at a performing arts school in Atlanta – and their interaction with one of the main characters of the series, a former star musician who leaves the music industry to teach.

Plaintiff brought suit against The Cartoon Network, its parent company, Turner Broadcasting System (TBS) and the co-creators of Class of 3000, alleging that defendants had copied his original treatment and asserting claims for copyright infringement and breach of an implied contract not to use his idea without compensation. The district court granted the motion to dismiss of defendants Cartoon Network and TBS, holding that plaintiff’s complaint failed to sufficiently allege actual copying. The court also denied plaintiff’s motions to amend his complaint to add additional defendants, finding that amendment would be futile.

Noting that defendants did not dispute that plaintiff sent a treatment of The Music Factory to The Cartoon Network in 1997 and therefore defendants had access to the copyrighted treatment or at least some derivative version of it, the court identified the remaining question as whether probative similarity existed between the original, copyrightable elements of the Music Factory treatment and the Class of 3000 sufficient to support the actual copying element of copyright infringement. The court concluded that no such similarity existed.

Agreeing with defendants that plaintiff’s vague allegations of similarities of “location, characters, content, format, and dramatis personae,” without more, were insufficient to meet the pleading standards for copyright infringement, the court found that plaintiff’s specific factual allegations – that both works took place in Atlanta, that the host or main character of show is either from or becomes involved in the music industry, and that the main character leaving his former job startt the story of each work – failed to allege sufficient probative similarity to demonstrate actual copying.

At the outset , the court noted that: “[Plaintiff’s] argument regarding probative similarity runs up against several hurdles often encountered by those who seek to enforce a copyright in a treatment for a television show, movie, or theatrical performance. Most notably, there are very few elements of the Music Factory treatment that are original; most of the alleged similarities are noncopyrightable –‘basic concepts and ideas’ or ‘stock scenes and characters.’" In fact, the court identified four reasons why plaintiff’s complaint failed to sufficiently allege sufficient similarities.

First, ideas and concepts are not protected by copyright, and plaintiff repeatedly asserted that defendants took his idea and “used it as an inspiration for the Class of 3000 show." Ideas contained in plaintiff’s Music Factory treatment – for example, an animated television show incorporating music, musicians, or original songs – are not copyrightable and, to the extent that defendants copied those ideas, this cannot constitute actionable copying.

Second, copyright does not protect plots, subplots or themes, and "the doctrine of scènes à faire denies copyright protection to elements of a work that are for all practical purposes indispensable, or at least customary, in the treatment of a given subject matter." According to the court, the concepts in plaintiff’s treatment - struggling young artists, stage fright, the inability to get recognized by the music industry, receiving mentoring from an industry insider or star, and overcoming technological and other obstacles to putting on a successful performance – are not original concepts, but rather are natural corollaries of an animated series following a group of young performers. Similarly, the plot device of the main character leaving one profession to start another, unrelated, profession, with little experience but considerable passion is a familiar one.

Third, stock characters are not copyrightable, and to the extent that characters’ attributes and actions extend naturally from their stereotyped characteristics, they are not protectable. The court rejected plaintiff’s argument that the main characters in The Music Factory and Class of 3000 – the Play Maker and Sunny – share similarities, finding that a connection to the music industry insufficient to render the characters substantially similar, and that, in fundamental ways, the two characters are actually polar opposites. Specifically ,the court noted that Sunny is a superstar musician who becomes frustrated with the demands of the music industry and returns to his old neighborhood, where he becomes a music teacher at the performing arts school that he attended, and that he possesses a magical quality, causing sunshine and flowers wherever he walk. In contrast, the Play Maker is a rich kid, obsessed with music videos and the music industry, who quits his job as lawyer, buys a production studio, and tries to become a successful producer. While Sunny is a mentor figure to his students, the Play Maker knows nothing about the music industry, learning as he goes and with the help of others.

The court concluded that the other characters in the plaintiff’s work, young musicians and a tough executive, were largely stock characters and not copyrightable. Characters involved in the music industry – musicians, singers, technicians, and producers – would naturally appear in works focusing on the music industry, musicians and bands. Even if plaintiff’s characters were copyrightable, however, the court found that the characters in The Music Factory bore little resemblance to the young student musicians in Class of 3000. The only similarity was their association with music and that common industry, which, according to the court, is not enough to demonstrate probative similarity.

Finally, location in a creative work is not copyrightable where that location is an actual location, known to many people. The court noted that plaintiff placed considerable emphasis on the fact that both shows take place in Atlanta, but that copyrighting a cartoon set in that city did not give plaintiff the exclusive right to use Atlanta as a setting for animated series, and the fact that both works are set in Atlanta does not constitute a probative similarity.

The court concluded that while the script of the Music Factory pilot and the sketches of that show's characters are original, copyrightable expressions, plaintiff alleged no similarity with those original elements and Class of 3000. Because his general idea and chosen locale for The Music Factory are not copyrightable expression, plaintiff failed to demonstrate actual, actionable, copying, and his claim must be dismissed.

Acknowledging that it need not go on to consider whether plaintiff’s complaint sufficiently alleged substantial similarity between The Music Factory and Class of 3000 – the second element if copyright infringement after actual copying – the court nonetheless concluded that plaintiff’s claim also failed to establish this element as well. Not only did plaintiff fail to point to any protectable expression of The Music Factory that was similar to Class of 3000, but the general feel and themes, as well as the mood and tone, of the two series, were so different that no ordinary observer would consider them substantially similar.

Plaintiff also failed to sufficiently state a claim for breach of an implied contract. At the outset, the court determined that Georgia law applied and construed the claim as one for misappropriation or conversion of an unpatented or unpatentable product or idea. Under Georgia law, the essential elements for the wrongful appropriation or conversion of an unpatented or unpatentable idea or product are that the idea must be novel, the disclosure of the idea must be made in confidence, defendant must adopt and make use of the idea, and the idea must be sufficiently concrete in its development to be usable. Given the court’s conclusion that he had failed to allege that defendant s copied his idea, plaintiff also failed to state a claim for misappropriation of an idea.

The court also denied plaintiff’s four motions seeking to add defendants to the Amended Complaint. Noting that plaintiff had not attached any proposed amended complaint to his motions and therefore alleged no additional factual allegations that would be incorporated to support the addition of these new defendants, the court concluded that, even if he had, amendment would be futile, since his complaint failed to sufficiently plead copyright infringement against those putative defendants.


For more information, please contact Jonathan Zavin at jzavin@loeb.com or at 212.407.4161.

Westlaw decisions are reprinted with permission of Thomson/West. If you wish to check the currency of these cases, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.

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