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Kenya Barris could be headed to trial this spring over whether he essentially gave up the right to base works like Black-ish on his own life experiences when he created an unproduced pilot with a friend from college.
Bryan Barber claims they partnered on a pilot back in 2006 and, when it didn’t take off, each agreed to not use it without the other’s participation. In September 2016, he sued for breach of implied contract, breach of confidentiality and fraud, claiming the ABC family comedy is based on that pilot. Barris moved for summary judgment, arguing Black-ish doesn’t copy from the earlier script and isn’t substantially similar to it, therefore there are no breaches or fraud.
L.A. Superior Court judge Samantha Jessner tentatively denied the motion, finding there are triable issues of fact that warrant putting the matter before a jury. She stopped short of making the decision final, instead taking the matter under submission following arguments on Thursday.
Barris‘ attorney, Steven Stiglitz, argued that Jessner has everything she needs to make the decision herself, emphasizing that the works aren’t substantially similar. “There’s no fact about what is in either of the two works that’s in dispute,” he said.
Stiglitz argued that the judge’s tentative ruling didn’t take into account “scenes a faire,” generic plot points that aren’t protectable. At issue here are jokes centering on black stereotypes, including working in an “urban department,” grape soda and fancy handshakes. While Barber isn’t suing for copyright infringement, and his attorney, Kenneth Ingber, admits that would be a tougher threshold, Stiglitz said the evaluation of copying is similar in a breach of implied contract case. In short, if there’s no copying of protectable elements, then there’s no breach.
That project centered on a group of “20-something African American professionals in the entertainment industry,” Barris argued, likening it to Entourage. Meanwhile, Black-ish is a family-centric sitcom with a lead who’s in his 40’s.
Both are semi-autobiographical, which presents interesting issues. For example, Barris‘ real-life wife is an anesthesiologist named Rainbow. Tracee Ellis Ross’ character in Black-ish shares that name and occupation, and Barris‘ girlfriend in the 2006 script was a doctor called “Bow.”
Stiglitz argued that two works inspired by the same thing, here Barris’ life, can be extremely different and it makes sense that the showrunner’s life would have changed significantly by 2013, when Black-ish was created. “They reflected different points in Mr. Barris’ life,” Stiglitz said, adding that the non-autobiographical parts of the stories are also different. “The mere fact that you have two works inspired by Mr. Barris’ life doesn’t mean the works ended up being the same.”
Ingber, in a brief rebuttal, argued that Barber and Barris had an agreement to not exploit their work without the other’s involvement and that extends to characters within that work — including those based on Barris and his wife.
Trial is currently set to begin May 7.
This tentative decision comes on the heels of THR‘s report that Barris is trying to get out of his overall deal with ABC, amid speculation that he could be next to sign a rich deal with Netflix.