(Reuters) - The 2nd U.S. Circuit Court of Appeals said Monday that Showtime’s hit show “Billions” didn’t infringe professional performance coach Denise Shull’s copyrights, rejecting Shull’s claims that the makers of the show ripped off her book and copied the book’s fictionalized version of her.
In an unsigned opinion, a three-judge panel upheld U.S. District Judge George Daniels’ Manhattan federal court ruling that Shull’s book and “Billions” weren’t similar enough to show copyright infringement.
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.
Showtime declined to comment, and its attorney Elizabeth McNamara of Davis Wright Tremaine didn’t immediately respond to a request for comment. Shull’s consulting firm The ReThink Group Inc also didn’t immediately respond to a request for comment.
Shull sued Showtime Networks Inc, its parent CBS Corp, and others affiliated with “Billions” in 2018. Shull said that, like her, the show’s Dr. Wendy Rhoades is a “female hedge fund performance coach who helps financial professionals improve their performance by dealing with their own emotional baggage.”
Shull said she helped the show’s creators develop Rhoades’ character, and that the show copied plot elements of her book “Market Mind Games” without her permission. Showtime moved to dismiss her claims because the works were “dramatically different” and the idea of a female hedge fund coach counseling clients about their emotions wasn’t copyrightable, among other things.
Daniels ruled in 2019 that the book and the show weren’t similar enough to sustain Shull’s claims, finding the works “do not seem to resemble each other in the least.” The book is an “academic work which interweaves fiction,” while the show focuses on “the drama that lies in the age old trifecta of money, power, and sex,” Daniels said.
Daniels also dismissed Shull’s state law claims that the “Billions” makers breached an implied contract with her or misused her persona.
On appeal, Shull argued that Daniels improperly relied on a “quick internet search” to inform his decision that “just because Shull was one of numerous in-house performance coaches she and her work were not unique or novel at all.”
But “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 Shull in Market Mind Games — namely their gender and occupation — are generalized and non-protectible.”
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.
The case is Shull v. Sorkin, 2nd U.S. Circuit Court of Appeals, No. 20-3529.
For Shull: Jonathan Moskin of Foley & Lardner and Avram Turkel of Borstein Turkel
For Showtime: Elizabeth McNamara of Davis Wright Tremaine
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