June 17, 2014 4:28pm PT by Eriq Gardner
Two Writers Seek to Save Lawsuit Claiming Fox's 'New Girl' Was Stolen
In Hollywood theft lawsuits, standard protocol is that a writer alleges some conspiracy whereby his or her work has been stolen, the studio hits back with a lesson about the nonprotectability of generic ideas, and the parties continue fighting until the judge weighs in ... usually in favor of the defendants. Will litigation over Fox's New Girl stray from this script?
To quickly review, Stephanie Counts and Shari Gold allege they once worked with William Morris Endeavor agents to shop a proposed television series titled Square One, that they also proposed Zooey Deschanel for the lead and that their script eventually became Fox's hit comedy. The "blatant plagiarism," to use the lawsuit's words, has sparked a copyright lawsuit.
Fox has, of course, answered the claim by denying similarity, except for the premise of a woman who leaves a bad relationship and moves in with three single men, which it says is a general, nonprotectable idea.
In advance of a hearing next month on a motion to dismiss, the plaintiffs have now responded with heavy use of boldface, bullet points and screams that Fox has gone too far.
"This motion to dismiss is fatally flawed and deficient in all respects as it should have never been filed," plaintiffs' attorneys tell the judge.
Fox's comparisons of New Girl DVDs to Square One scripts is called a fail — actually a shocking one. Sit down for this.
"The problem arises from the fact that Defendants ask the Court to compare judicially noticed New Girl DVDs to Plaintiffs’ Square One scripts, but shockingly fail to address the actual copyrighted scripts for New Girl, including the pilot named 'Chick and Dicks,'" say the plaintiffs. "Logically, this Court cannot consider substantial similarity in a motion to dismiss where it cannot even examine the underlying screenplay Plaintiffs allege to be infringing. The Chicks and Dicks script is referenced repeatedly by Plaintiffs in the First Amended Complaint and thus Defendants have no excuse for not including it in their analysis."
Lawyers for Counts and Gold are happy to step in here, but not before another boldfaced rhetorical flourish that asserts, "Square One is not just substantially similar to New Girl, it is virtually identical."
(No extra points in copyright law for being above and beyond substantially similar.)
To the proposition that the two works merely express the general idea of a woman moving in with three male roommates, the plaintiffs say "there is absolutely no way Defendants could have read the Complaint if they actually hold such an opinion," then bullet-point some characteristics that both works share. Such as:
- a late twenties, early thirties woman who moves in with three guys; the move is result of break up after her ex—named Spencer—cheats on her;
- the protagonist is awkward and sexually inexperienced
- the type-B bartender roommate is the one who likes and eventually becomes romantically involved with the protagonist
"The totality of the similarities ... is simply stunning and it defies logic that New Girl was created without Defendants drawing on and copying Plaintiffs’ protected expression," allege the plaintiffs.
That point is emphasized again and again, and at this point, we should interject that almost all copyright plaintiffs fail, and the most successful ones are not necessary the ones who get a jury to vindicate their role in helping usher hit movies and TV shows; rather, the successful ones are usually those you don't hear about — the ones who have survived a few rounds of pretrial fussing and walk away with some confidential settlement.
To achieve something like this, the plaintiffs in the New Girl case aren't merely calling the motion to dismiss premature and citing the virtual identicalness of both works, but also speaking explicitly about the role of WME agents. It's not an entirely irrelevant point, because most plaintiffs fail at showing how defendants accessed their allegedly stolen work, and as plaintiffs point out, "under the Inverse Ratio Rule, a greater showing of access significantly lowers a plaintiff's burden in proving substantial similarity between the two works at issue. Make no mistake, Defendants received Plaintiffs' scripts. Consider, defendant William Morris Endeavor, the powerful talent agency at the center of this lawsuit."