1 00:00:00,080 --> 00:00:06,320 Speaker 1: M Welcome to the Bloomberg Law Podcast. I'm June Grosso. 2 00:00:06,760 --> 00:00:09,440 Speaker 1: Every day we bring you insight and analysis into the 3 00:00:09,480 --> 00:00:12,000 Speaker 1: most important legal news of the day. You can find 4 00:00:12,039 --> 00:00:15,320 Speaker 1: more episodes of the Bloomberg Law Podcast on Apple podcast, 5 00:00:15,520 --> 00:00:19,319 Speaker 1: SoundCloud and on Bloomberg dot com slash podcast. If you 6 00:00:19,360 --> 00:00:22,720 Speaker 1: watch the Showtime series Billions, you know that Dr Wendy 7 00:00:22,840 --> 00:00:26,480 Speaker 1: Rhodes is a no nonsense therapist who counsels the traders 8 00:00:26,480 --> 00:00:29,880 Speaker 1: at Acts Capital to reach their best performance. Now, I 9 00:00:29,920 --> 00:00:31,640 Speaker 1: want you to go back to your Bloomberg and cut 10 00:00:31,640 --> 00:00:34,319 Speaker 1: bait on your losers. You know the ones, the ones 11 00:00:34,360 --> 00:00:36,879 Speaker 1: you've been defending hoping they'll come round, but secretly you 12 00:00:36,920 --> 00:00:40,080 Speaker 1: know never will. I want you to just commit that 13 00:00:40,159 --> 00:00:43,040 Speaker 1: you're in it for the long haul, that you will succeed. 14 00:00:43,680 --> 00:00:46,520 Speaker 1: And once you do that, the new ideas the winners 15 00:00:46,640 --> 00:00:50,960 Speaker 1: will present themselves. Because you are a winner. You're in 16 00:00:51,000 --> 00:00:55,520 Speaker 1: the special Forces here, you are a Navy seal. Denise 17 00:00:55,560 --> 00:00:58,440 Speaker 1: schol who's also a performance coach for traders, says that 18 00:00:58,560 --> 00:01:01,520 Speaker 1: Rhodes character is an un authorized rip off of a 19 00:01:01,600 --> 00:01:05,240 Speaker 1: fictionalized version of herself from her book Market Mind Games, 20 00:01:05,319 --> 00:01:09,320 Speaker 1: a Radical Psychology of investing trading and risk, and she's 21 00:01:09,360 --> 00:01:13,440 Speaker 1: suing Showtime, CBS and the show's creators for copyright infringement, 22 00:01:13,680 --> 00:01:16,760 Speaker 1: joining me as intellectual property attorney Terrence ross A partner 23 00:01:16,880 --> 00:01:20,360 Speaker 1: Captain uten Rosenman Terry tell us more about the lawsuit. 24 00:01:21,319 --> 00:01:27,000 Speaker 1: Mchel claims that she had a series of conversations with 25 00:01:27,080 --> 00:01:34,440 Speaker 1: the producers of Showtimes Billions television series about the notion 26 00:01:34,760 --> 00:01:40,399 Speaker 1: that many of the leading money management firms are now 27 00:01:40,720 --> 00:01:48,080 Speaker 1: using coaches to assist their traders and brokers to maximize 28 00:01:48,160 --> 00:01:55,040 Speaker 1: their potential. These coaches are typically psychologists who are trying 29 00:01:55,160 --> 00:01:59,920 Speaker 1: to help money managers with the mental part of the game, 30 00:02:00,360 --> 00:02:04,360 Speaker 1: in the same way that sports psychologists help athletes with 31 00:02:04,480 --> 00:02:08,960 Speaker 1: the mental part of the game. And she apparently persuaded 32 00:02:09,360 --> 00:02:15,000 Speaker 1: the producers that such a coach would be a great 33 00:02:15,120 --> 00:02:20,640 Speaker 1: character to use, and sure enough, Billions does feature exactly 34 00:02:20,800 --> 00:02:25,079 Speaker 1: such a psychologist working for the money management firm that's 35 00:02:25,080 --> 00:02:28,160 Speaker 1: featured in the television show. She's not married to the 36 00:02:28,280 --> 00:02:30,840 Speaker 1: u S Attorney for the Southern District, which is a 37 00:02:30,960 --> 00:02:35,520 Speaker 1: key part of Wendy Rhodes character and plotline. Would that 38 00:02:35,560 --> 00:02:39,800 Speaker 1: be enough to foil her lawsuit or is it the 39 00:02:40,040 --> 00:02:44,000 Speaker 1: entire character? How do they Judge it Mitchell's complaint is 40 00:02:44,280 --> 00:02:50,160 Speaker 1: grounded in copyright. She's essentially alleging that the character she 41 00:02:50,560 --> 00:02:55,119 Speaker 1: pitched to the producers of Billions was taken without her 42 00:02:55,160 --> 00:03:00,200 Speaker 1: authorization and used in the showtime television series. In copyright law, 43 00:03:00,360 --> 00:03:05,000 Speaker 1: we do not ask what is different about the infringement. 44 00:03:05,240 --> 00:03:08,360 Speaker 1: We ask what is similar And so the fact that 45 00:03:08,720 --> 00:03:12,520 Speaker 1: the character in the television show is married to the 46 00:03:12,600 --> 00:03:15,760 Speaker 1: United States Attorney for Southerndition, New York and she is 47 00:03:15,800 --> 00:03:19,920 Speaker 1: not in real life is actually legally irrelevant. We focus 48 00:03:19,960 --> 00:03:23,600 Speaker 1: only on the similarities. The key question is is there 49 00:03:23,720 --> 00:03:31,160 Speaker 1: sufficient similarity that a reasonable juror would understand that Ms. 50 00:03:31,160 --> 00:03:35,320 Speaker 1: Schul's character is the character being portrayed on the television show. 51 00:03:35,840 --> 00:03:39,280 Speaker 1: And that's a real question mark in my mind, based 52 00:03:39,320 --> 00:03:42,080 Speaker 1: on the facts as I understand. So, Terry, if this 53 00:03:42,120 --> 00:03:45,040 Speaker 1: goes to trial, will a jury here about meetings that 54 00:03:45,080 --> 00:03:48,760 Speaker 1: she had with the creators and she also emailed with 55 00:03:48,840 --> 00:03:51,800 Speaker 1: the actress? Well, the jury here all that. Yes, the 56 00:03:51,880 --> 00:03:54,520 Speaker 1: jury will have to hear all that. And that's because 57 00:03:55,000 --> 00:03:58,560 Speaker 1: under the copyright law, a key element of proof that 58 00:03:58,640 --> 00:04:03,200 Speaker 1: she has to provide is that the alleged infringers here, 59 00:04:03,280 --> 00:04:07,280 Speaker 1: the producers of the television show had access to her 60 00:04:07,520 --> 00:04:12,240 Speaker 1: copyright at work, and she will prove access by saying 61 00:04:12,680 --> 00:04:15,480 Speaker 1: I sat down with them, I explained the character, I 62 00:04:15,480 --> 00:04:19,520 Speaker 1: explained my concept for the character. I emailed with them, 63 00:04:19,560 --> 00:04:22,080 Speaker 1: and they looked at the book I had written. This 64 00:04:22,160 --> 00:04:26,080 Speaker 1: is how she will satisfy the element of access to 65 00:04:26,240 --> 00:04:31,000 Speaker 1: the work, and frankly, that is often the most difficult 66 00:04:31,120 --> 00:04:35,719 Speaker 1: and challenging element of proof in these cases where you 67 00:04:35,800 --> 00:04:38,080 Speaker 1: have a successful television show, we're moving and all of 68 00:04:38,080 --> 00:04:40,400 Speaker 1: a sudden people start coming out of the woodwork claiming 69 00:04:40,440 --> 00:04:42,919 Speaker 1: that they were the original writers of it. Um, there's 70 00:04:43,040 --> 00:04:46,240 Speaker 1: usually no access that nobody got to see the script 71 00:04:46,600 --> 00:04:49,559 Speaker 1: that was purportedly written, nobody ever talked to the person. 72 00:04:49,880 --> 00:04:53,680 Speaker 1: And here she appears to have facts sufficient um to 73 00:04:53,760 --> 00:04:57,080 Speaker 1: get past this element of access, which should allow the 74 00:04:57,120 --> 00:05:00,400 Speaker 1: case to go to the jury. And that make for 75 00:05:00,440 --> 00:05:03,880 Speaker 1: a very interesting case because most of these claims of 76 00:05:03,960 --> 00:05:08,200 Speaker 1: copyright infringement against films and recordings and television shows or 77 00:05:08,279 --> 00:05:11,320 Speaker 1: plays never ever get to the jury because they can't 78 00:05:11,360 --> 00:05:15,360 Speaker 1: get past this element of some sort of access. A 79 00:05:15,440 --> 00:05:20,400 Speaker 1: Showtime spokeswoman disputed the claim and said Mitchell has cycled 80 00:05:20,400 --> 00:05:23,359 Speaker 1: through multiple law firms and theories of her supposed case 81 00:05:23,480 --> 00:05:26,000 Speaker 1: as part of her repeated failed attempts to force us 82 00:05:26,080 --> 00:05:29,279 Speaker 1: to engage her as a consultant on our show. Does 83 00:05:29,320 --> 00:05:33,600 Speaker 1: that carry any import well, it will not be evidence 84 00:05:33,839 --> 00:05:39,080 Speaker 1: in the lawsuit um. However, in the court of public domain, 85 00:05:39,200 --> 00:05:43,400 Speaker 1: certainly amongst legal experts, they'll take note of the fact 86 00:05:43,520 --> 00:05:46,880 Speaker 1: that she went to a number of different law firms 87 00:05:46,960 --> 00:05:51,080 Speaker 1: who refused to take on the case. I assume that 88 00:05:51,120 --> 00:05:55,920 Speaker 1: she has hired lawyers who are known as contingent fee lawyers. 89 00:05:56,160 --> 00:05:59,040 Speaker 1: In other words, they don't actually charge her an hourly 90 00:05:59,320 --> 00:06:02,919 Speaker 1: rate for their work. Rather, they agree to accept in 91 00:06:03,000 --> 00:06:07,360 Speaker 1: exchange a portion of any damages or settlement that they win. 92 00:06:07,760 --> 00:06:12,560 Speaker 1: And therefore that type of lawyer contingently lawyer often has 93 00:06:12,640 --> 00:06:17,040 Speaker 1: to look very very closely at the likelihood of success 94 00:06:17,360 --> 00:06:19,880 Speaker 1: because they don't get paid otherwise. And if a number 95 00:06:19,960 --> 00:06:23,560 Speaker 1: of law firms looked closely at the facts and the 96 00:06:23,600 --> 00:06:27,039 Speaker 1: evidence she had and refused to take the case, that 97 00:06:27,080 --> 00:06:30,560 Speaker 1: would be very telling to me as to the actual 98 00:06:30,680 --> 00:06:35,240 Speaker 1: strength of her case in court in europeanion. What you 99 00:06:35,320 --> 00:06:38,400 Speaker 1: see now, and we haven't seen the response from Showtime 100 00:06:38,480 --> 00:06:42,200 Speaker 1: or any of the show's creators, It looks like it's 101 00:06:42,240 --> 00:06:45,520 Speaker 1: good enough to get past emotion to dismiss. I certainly 102 00:06:45,520 --> 00:06:48,120 Speaker 1: think it's good enough to get past emotion to dismiss. 103 00:06:48,120 --> 00:06:50,760 Speaker 1: Whether or not will survive a motion for summary judgment, 104 00:06:50,760 --> 00:06:53,520 Speaker 1: which will come later in the case, is another question. 105 00:06:53,760 --> 00:06:55,840 Speaker 1: I think one of the defenses that show Time is 106 00:06:55,880 --> 00:06:58,599 Speaker 1: going to raise is that this is a so called 107 00:06:58,880 --> 00:07:03,080 Speaker 1: stock character, or that it is not entitled to copyright 108 00:07:03,080 --> 00:07:06,800 Speaker 1: protection in the first place. It's not sufficiently fleshed out. 109 00:07:07,200 --> 00:07:11,600 Speaker 1: The comparison would be towards James Bond. James Bond is 110 00:07:11,640 --> 00:07:16,480 Speaker 1: sufficiently fleshed out and unique and different that his character 111 00:07:16,520 --> 00:07:20,800 Speaker 1: can be copyrighted. However, the general stock character of a 112 00:07:21,200 --> 00:07:25,680 Speaker 1: Debonair secret agent engaged in dangerous missions upon which the 113 00:07:25,680 --> 00:07:29,640 Speaker 1: faith of the world hinges that would not be copyrightable. 114 00:07:29,680 --> 00:07:32,440 Speaker 1: It's only when you get down to very, very specific 115 00:07:32,880 --> 00:07:37,480 Speaker 1: and detailed character traits that you get copyright protection. And 116 00:07:37,520 --> 00:07:40,560 Speaker 1: I think here the argument should be from Showtime is 117 00:07:41,080 --> 00:07:45,400 Speaker 1: that the character that Michel laid out was simply a 118 00:07:45,560 --> 00:07:49,640 Speaker 1: stock character and not one capable of copyright protection in 119 00:07:49,640 --> 00:07:52,040 Speaker 1: the first place. And if the court agrees with that, 120 00:07:52,240 --> 00:07:54,840 Speaker 1: then they should be able to obtain summary judgment and 121 00:07:54,880 --> 00:07:57,440 Speaker 1: the case will never go to a jury. That's Terence Ross, 122 00:07:57,480 --> 00:08:02,280 Speaker 1: a partner at Captain Nuten Rosamond. Thanks for listening to 123 00:08:02,280 --> 00:08:05,600 Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to 124 00:08:05,640 --> 00:08:09,320 Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot 125 00:08:09,400 --> 00:08:13,920 Speaker 1: com slash podcasts. I am June Brasso. This is Bloomberg.