The “Ballers” In Your Court: Defending Copyrightable Expression

HBO’s hit series Ballers came under attack in the U.S. District Court for the Central District of California by a copyright infringement claim filed by plaintiffs, the owners of an original copyrighted work entitled Off Season. The court, after a thorough comparison of the two works, determined plaintiffs failed to satisfy the extrinsic test of substantial similarity and dismissed the case with prejudice on July 25, 2016.¹

1. The Copyrighted Works at Issue

Beginning in May 2007, plaintiffs began sharing their original motion picture trailer, a shortened trailer, a screenplay, and a treatment of their story, the Off Season, with colleagues in the television industry. These materials consisted of four separate copyrights, which were the subject of plaintiffs’ single copyright infringement claim in this case.² According to the complaint, the Off Season materials found their way to a group of producers, a production company, Dwayne “The Rock” Johnson, Mark Wahlberg, and his manager, Stephen Levinson. In or around December 2008, Wahlberg, Johnson, and Levinson confirmed their interest in producing Off Season with plaintiffs, but negotiations ended when removing plaintiffs’ names from the credits became a condition of the proposed agreement.³

The Off Season tells the story of Nathaniel Brandon Hall (“NBH”), the owner of a nightclub called “The Off Season,” which caters to professional football’s elite clientele who need anonymity so that they may engage in their vices out of the public eye, including bribing a detective to ignore the prostitution, violence, and drugs that frequent the club.⁴ True to its name, the story line takes place entirely during professional football’s off season.

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.⁵ Strasmore is played by lead actor, Dwayne Johnson, who counsels his young football protégés not to fall into the same financial mistakes he made during his career as a professional athlete.⁶ The general story line of Ballers also takes place entirely during professional football’s off season.⁷

Plaintiffs alleged that the Ballers television series borrowed heavily from the Off Season materials and that both works have substantial similarities in plot, setting, characters, theme, mood, dialogue, and pace.⁸ Plaintiffs depicted both works as “follo[wing] an African American football player who is essentially a business man who tries to monetize his friendships with other professional football players and athletes to help grow his business.”⁹ However, the court would find on defendants’ motion to dismiss that “the only actual alleged similarities between the two works relate to unprotected elements.”¹⁰ “[A]lthough there are some generic similarities between Ballers and the Off Season, there are no similarities between the actual objective details of the works.”¹¹

2. Ballers Defeats the Off Season’s Claims Under the Extrinsic Test

To demonstrate copyright infringement, a plaintiff must show “(1) ownership of a valid copyright, and (2) copying of constituent elements of that work that are original.”¹² Copying may be established by demonstrating (1) “that the [defendant] had access to plaintiff’s copyrighted work,” and (2) “that the works at issue are substantially similar in their protected elements.”¹³

Under Ninth Circuit law, courts employ a two-part test to determine if works are substantially similar: an intrinsic test and an extrinsic test.¹⁴ The intrinsic test is a subjective comparison of the total concept and feel of the two works, whereas the extrinsic test is an objective comparison of specific expressive elements which seeks to find “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.”¹⁵ As was the case here, a court may dismiss a complaint on a 12(b)(6) motion for failing to satisfy the extrinsic test “because a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests.”¹⁶

Because access was not in dispute and plaintiffs alleged that defendants read or viewed the Off Season materials, the court further applied the inverse ratio rule to plaintiffs’ claims.¹⁷ In so doing, the court “require[s] a lower standard of proof of substantial similarity when a high degree of access is shown.”¹⁸ Even under this liberal inverse ratio rule, plaintiffs failed to state a claim of copyright infringement because the alleged similarities between the protected elements of the works were not actual similarities that could result in a finding of substantial similarity under the extrinsic test.¹⁹

3. No Similarities Found Between the Actual Objective Details of the Works

The court engaged in a detailed analysis of plot, setting, characters, theme, mood, dialogue, pace and other miscellaneous alleged similarities between Ballers and the Off Season and held that the protectable elements of the works are significantly different.²⁰ By filtering out and disregarding non-protectable elements, the inquiry was “whether the protectable elements, standing alone” were substantially similar.²¹

Plaintiffs argued that when determining whether Ballers is substantially similar to the Off Season, the court must consider the Ballers script and disregard the television series.²² The court rejected this argument because “published works cause injury under copyright law, [therefore] courts consider the final version of a film, rather than unpublished scripts, when determining substantial similarity.”²³

Consequently, upon comparison of the Ballers television series and the Off Season materials that were distributed to defendants, the court found only a few actual similarities between the works, all of which were not protectable expression: (1) the stories are set entirely during professional football’s off season; (2) NBH and Strasmore are both well-dressed football players who are sexually promiscuous, drive fancy cars, and have a cocky attitude; and (3) the basic plot premise is a story about football players during the football off season.²⁴ Even NBH and Strasmore’s respective Latina love interests were held to be “stock characters,” not subject to copyright protection because they were not “sufficiently delineated and especially distinctive.”²⁵

4. Takeaways

Procedurally, the result of defendants’ motion to dismiss provides a powerful message for IP litigators: without specific allegations of extrinsic, objective similarities in copyrightable expression between competing works, a claim for copyright infringement is subject to dismissal with prejudice.²⁶ Plaintiffs’ complaint suffered from overarching generalities with respect to articulable similarities. Moreover, the court considered all the specific documents and materials referenced in the complaint, even though they were not attached to it, without converting defendants’ 12(b)(6) motion into a summary judgment motion.²⁷ This resulted in a comprehensive diagnosis of the content comprising the Off Season and Ballers story line in more than one format at an early stage in the proceedings. Even under a liberal inverse ratio standard, plaintiffs’ complaint failed to state a claim because copyright law “protects expression of ideas, not the ideas themselves,” stock scenes and themes “are not protected against copying.”²⁸

Whether on the offense or the defense, the distinct similarities of a copyrighted work should either be alleged with specificity on the one hand, or articulated with sufficient detail to show no substantial similarity on the other.
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¹ Everette Silas, et al. v. Home Box Office, Inc., et al., No. CV 15-9732-GW(FFMx), 2016 U.S. Dist. LEXIS 107944, at *57 (C.D. Cal. July 25, 2016).
² The court noted that although subject of four separate copyrights, it would discuss the Off Season as a whole on defendants’ motion to dismiss. However, the court conducted a separate evaluation of the treatment, screenplay, trailer, and 10 minute trailer in determining that the Off Season is not substantially similar to Ballers. Id. at n. 7.
³ Id. at *7.
⁴ Id. at *2-4.
⁵ Id. at *7.
⁶ Id. at *27-28.
⁷ Id. at *34-36.
⁸ Id. at *10, 23-24.
⁹ Id. at *26.
¹⁰ Id. at *23-24.
¹¹ Id. at *26.
¹² Feist Publ’ns, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340, 361 (1991).
¹³ Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002).
¹⁴ Id. at *22-23 (citing Cavalier, 297 F.3d at 822).
¹⁵ Cavalier, 297 F.3d at 822 (citing Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)).
¹⁶ Home Box Office, Inc., 2016 U.S. Dist. LEXIS 107944, at *20-23 (quoting Kouf, 16 F.3d at 1045).
¹⁷ Id. at *22-23.
¹⁸ Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000).
¹⁹ Home Box Office, Inc., 2016 U.S. Dist. LEXIS 107944, at *23-24.
²⁰ Id. at *53-54.
²¹ Cavalier, 297 F.3d at 822 (quotations omitted) (emphasis in original).
²² Home Box Office, Inc., 2016 U.S. Dist. LEXIS 107944, at *14.
²³ Id. at *14-15 (citing Meta-Film Assocs., Inc. v. MCA, Inc., 586 F.Supp. 1346, 1360 (C.D. Cal. 1984)).
²⁴ Id. at *35-36, 41, 49
²⁵ Id. *42-44.
²⁶ See, e.g., Gilbert v. New Line Prods., Inc., No. CV 09-02231 RGK, 2009 U.S. Dist. LEXIS 130675, at *21 (C.D. Cal. Nov. 16, 2009) (dismissing plaintiff’s claim with prejudice after determining there was no substantial similarity because “no additional facts would allow [plaintiff] to prevail in her case”).
²⁷ Id. at *13-14 (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
²⁸ Cavalier, 297 F.3d at 823 (citing Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985)).