June 20, 2013 3:16pm PT by Eriq Gardner
Judge Allows Cop's Claim that NBC's 'Stars Earn Stripes' Was Stolen
A lawsuit brought by a former New York police detective that alleges that NBC's Stars Earn Stripes was stolen is moving to the next round.
Richard Dillon, who worked for the NYPD for 20 years and has been a consultant on TV shows, brought the lawsuit last November. He came up with an idea for a reality TV show that pitted celebrity contestants against one another in competitive events designed to mimic the training received by Navy SEALs. Among those he's suing for taking his WGA-registered treatment is NBCUniversal and series producers Dick Wolf and Mark Burnett.
The defendants in the lawsuit urged California federal judge James Otero to dismiss various claims on the ground that they had insufficient access to Dillon's treatment and that the material wasn't sufficiently similar to Stars Earn Stripes, but in a ruling on Tuesday, the judge finds enough in the allegations to largely leave the lawsuit intact.
More times than not, federal judges will dismiss idea theft claims because the bar for substantial similarity is high. So it's fairly notable anytime a judge takes the time in a theft case to write a detailed ruling that denies a motion by a major entertainment studio.
In this case, according to allegations laid out by Judge Otero, Dillon and a co-creator named Jonathan Moss began contacting television producers about their idea. They were referred to David Hurwitz, a producer of reality TV whose previous work includes Fear Factor and who would later be credited with co-creating Stars Earn Stripes.
In August, 2011, a conference call was held and Hurwitz praised Dillon's idea for "Celebrity SEALs." Later, Hurwitz would e-mail Moss and stated, "I look forward to reading the treatment and seeing if we can't make something happen."
More e-mails bounced around and by the end of that month, Hurwitz said he was too busy working on Fear Factor to "do right by you." Hurwitz wished them luck. He's now a co-defendant in this lawsuit.
In reviewing whether Burnett and Wolf deserve to be part of the case too, Judge Otero says yes. The judge writes, "Construing the allegations of the First Amended Complaint liberally in favor of Plaintiff, it is reasonable to infer that Hurwitz shared the Treatment with Burnett and Wolf, as it is alleged that they worked together on the Program."
As such, Judge Otero must then consider whether the treatment for "Celebrity SEALs" and the TV show, Stars Earn Stripes, is similar enough that it could plausibly support a claim for copyright infringement. To do this, the judge has to look past the non-protectable elements including generic ideas like a host, celebrity contestants, contestants living in close proximity with one another, etc.
Examining the mood, the judge notes there's reverential treatment given to men and women of the armed services in both works. Looking at the plot, the judge notes the similarity of military-themed missions and tasks in both. And analyzing the characters, the judge writes how the "proposed celebrity contestants is uncannily similar to the contestants chosen to participate in the Program" -- including a member of the boys group 99 Degrees, WWE professional wrestling stars, a Dancing with the Stars host and a retired SEAL turned politician.
"Viewing the protectable elements of the works as a whole, the Court cannot conclude that they
are not substantially similar on the pleadings," writes the judge. "This is especially true in light of the high degree of access alleged by Plaintiff—that Plaintiff and Moss provided a copy of the Treatment to Hurwitz."
But that's not the end of the story on Tuesday's ruling because the judge also decides that he won't dismiss a claim that NBCU induced Hurwitz to breach an alleged implied agreement with Dillon by encouraging him to produce Stars Earn Stripes. (NBCU does escape a direct breach of contract claim and also limits the damage from an unfair competition claim.)
In sum, NBCU, Wolf, Burnett and others are still facing claims of infringement. It's possible that the judge will come to a different conclusion when the defendants file a likely summary judgment motion. If not, this New York police officer could eventually navigate the treacherous path of traps and pitfalls of the copyright variety to test the strength of his claims before a jury of his peers.
E-mail: email@example.com; Twitter: @eriqgardner