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Writer John Musero may not be thrilled to hear a California appeals court doesn’t think his pilot about the U.S. Attorney General isn’t a topic of public interest — but, then again, it helped him in his legal fight with CAA and agents who he alleges used his ideas to develop and package a project with other clients.
Musero in March 2019 sued CAA and his former agents Andrew Miller and Leah Yerushalaim. He alleges his agents, after failing to properly shop his Main Justice pilot, later “harvested” it for a project of the same name for clients Jerry Bruckheimer and writer Sascha Penn that was sold to CBS.
In January, L.A. Superior Court Judge Yolanda Orozco denied CAA’s special motion to strike the complaint under California’s anti-SLAPP statute, which brings an early end to meritless lawsuits arising from protected conduct like the exercise of free speech on a matter of public interest. She found that while the alleged conduct arose from protected speech and concerned a matter of public interest Musero had demonstrated his claims have the minimal merit necessary to survive the motion.
A California appeals court on Wednesday affirmed the decision, but it diverged from the trial court in one key area: public interest.
“Although we agree the challenged conduct arises from protected speech activity, when the context and content of the specific allegedly wrongful statements are considered, their degree of connection to a topic of public interest is insufficient to warrant protection,” states the opinion, which is embedded below.
The key difference for this court is that in the Penn-Bruckheimer version the Attorney General is inspired by Eric Holder, who served in the role from 2009-2015 and was the first Black man to hold the position, and Musero’s version didn’t have any connection to the high-profile, real-life figure.
While the appeals court found it’s “undoubtedly correct that a proposed television series not only based on the life of former Attorney General Holder but also apparently created in part by him would be a topic of widespread public interest” — Musero’s protagonist was “an entirely fictional” female character.
“Communicating the general idea of a legal drama (a ‘procedural,’ in television industry parlance) involving the Attorney General and prosecutors in the Department of Justice is not significantly different from the second 30 minutes of each episode of the Law & Order franchise that ran on NBC for 20 years, which focused on the Manhattan District Attorney’s Office and its prosecutors, and is not closely linked to any ongoing public interest that might exist with respect to former Attorney General Holder or even to the Penn-Bruckheimer series itself,” states the opinion.
And, as to context, the alleged misappropriation happened in private, which isn’t necessarily a dealbreaker but “makes heavier” the burden of proving the speech at issue “contributed to discussion or resolution of a public issue.”
The rest of the creative elements that were allegedly “harvested” by the agents are “even further removed from any public interest,” the appeals court found.
“Car crashes, assassination attempts, cliffhanger endings and analogies — direct or subtle — between the justice system and the rules of basketball, whatever they may indicate about the similarity between the two pilot scripts, contribute nothing to the discussion of the issue of public interest identified by the CAA parties or the trial court,” states the opinion. “In sum, the creative aspects of his work that Musero claims Miller misappropriated, privately communicated to a targeted audience of one, whatever its purported impact on Penn’s work, did not contribute to the public conversation about a matter of public interest.”
Because the appeals court found CAA didn’t meet the first prong of the anti-SLAPP test, it didn’t consider whether Musero demonstrated a probability of prevailing on the merits of his claims.
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