October 04, 2013 6:50am PT by Eriq Gardner
Fox Television Beats Man's Lawsuit Over 'Burn Notice' Character
As Edward Snowden continues to make surprising revelations concerning everything the U.S. intelligence community is capable of doing, it's probably not wise to discount the possibility that there is a real-life "burnt" spy out there who is fighting with dark forces within the Central Intelligence Agency. On the other hand, the recently concluded USA Network spy drama Burn Notice, while entertaining, is pretty ludicrous, no? (Why does everything happen in Miami, Florida?)
One man watched Burn Notice and thought it sounded too familiar.
According to a $500 million lawsuit brought by Michael Terry against series producer Fox Television Studios, certain experiences of the Michael Westen character were "very much like" certain experiences of his own. He sued for misappropriation of his "likeness" and prayed for injunctive relief. He then failed to survive Fox's motion to strike the lawsuit at the early stage.
Terry appealed. His attempt at reversal was grounded on Terry's reasoning that Fox "did not deserve to win." Still, a California appellate court had to entertain it.
Yes, Fox prevailed again.
In an opinion on Wednesday, appellate Judge Patricia Bigelow affirms the lower court's reasoning that Terry can't demonstrate that he has a probability of prevailing against Fox.
"Fox's evidence showed that Burn Notice creator Matt Nix never met Terry, and never heard of Terry or his memoir 'The Setup' prior to Terry's lawsuit," writes the judge. "Further, that Nix never read 'The Setup.' Nix created Burn Notice without input from Terry; the characters in Burn Notice are purely fictional."
(According to one Amazon.com review for Terry's book, The Setup: Memoirs of a NSA Black Operation, the author claims the NSA is capable of mind-control.)
The judge also rejects Terry's theory that his protected "likeness" gave him a vehicle to sue Fox because a character in a television show was like him.
"The law does not protect such a wide-encompassing concept of 'likeness,' " says the judge. "Similarities between a real person's personal life experiences and those of a fictional character do not support a claim for misappropriation of the former's 'likeness.' If the law of 'likeness' afforded protection as broadly as Terry's argument seems to propose, then every person who sees some similarity between their personal life experiences and a character on a television show or movie could assert a misappropriation claim."