'Orphan Black' Production Company Must Face Copyright Lawsuit in California

The $5 million lawsuit alleges the series was cloned from a screenplay submitted to producers a decade ago.
BBC America

One of the ambiguities of BBC America's acclaimed series Orphan Black is where the show takes place. The drama about a group of clones is filmed in Toronto. Lead star Tatiana Maslany has an English accent for one of the characters she plays and an American accent for some of the others. It's not quite clear where the drama is set.

But thanks to a judge's ruling on Monday, a copyright lawsuit that alleges that Orphan Black was cloned from a screenplay submitted to producers a decade ago is going to take place in California.

Stephen Hendricks is suing BBC and series producer Temple Street Productions for allegedly infringing his own work titled "Double Double." The plaintiff claims in a $5 million lawsuit that in 2004, he submitted his work to Temple Street co-president David Fortier.

In response to the lawsuit alleging both works feature the clandestine development of clones and the resulting journey of the protagonist to discover her origins, Temple Street and Fortier threw up a jurisdictional challenge.

Temple Street and Fortier are both based in Canada.

To make a lawsuit against Canadians stick in a California forum, Hendricks had to show this is an "exceptional" case where the company's contacts with California are "so substantial and of such a nature as to render the corporation at home" in the state.

In ruling in Hendricks' favor at this procedural stage, U.S. District Judge Ronald Lew points to evidence that Temple Street incorporated a subsidiary under California law, calls its U.S. division its "LA office," and that the company's website lists contact information in both California and Canada. He concludes there's a prima facie showing of general jurisdiction over Temple Street.

Then, there's Fortier, an executive (and former entertainment lawyer) who has never lived in California, doesn't own property and doesn't have any bank accounts in the state. He has a sophisticated business-model as evidenced by a deposition where he reveals that he creates a new single-purpose company to produce each new season of Orphan Black. (Yes, there is such thing as real-life clones.)

The judge rules he should face a California lawsuit because he purposefully availed himself of the forum by conduct, the plaintiff's claim arises out of California-related contacts, and the extension of jurisdiction is reasonable.

"The evidence shows that Fortier, acting on behalf of TSPI, traveled specifically to California to 'pitch' the Series and to meet with TSPI’s California agent, CAA, to discuss the Series," states the judge's opinion. "The evidence also shows that, through a 'coordinated plan to distribute' the Series in the United States through TSPI’s subsidiaries and BBC Worldwide, which owns 25% of TSPI, Defendants advertise and sell Orphan Black in California."

The judge rejects the defendants arguments that the case would be better adjudicated in Canada. According to the ruling:

"Defendants argue that exercising jurisdiction over Fortier and TSPI would be unreasonable and inconvenient because the 'development and production of the series occurred entirely in Canada,' and because Defendants would 'be required to incur the costs of having numerous witnesses... come to California to testify at trial.' Such arguments do not support unreasonableness, as mere inconvenience will not suffice, especially in this age of air travel and when Canada shares the same continent with the United States."

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