Judge Rejects "Ambiguous" Lawsuit Alleging Fox's 'New Girl' Was Stolen

However, Stephanie Counts and Shari Gold will be given another chance to overcome the judge's reservations
Ray Mickshaw/FOX

A judge has ruled that two writers must go back to Square One if they wish to re-file claims that Fox's New Girl is a copyright infringement of their own work.

In January, Stephanie Counts and Shari Gold sued Fox, William Morris Endeavor, showrunner Liz Meriwether and executive producer Peter Chernin for allegedly basing the hit comedy on their proposals for a television show or movie that would have been titled Square One. The lawsuit claims that Counts and Gold shopped their script through WME and that they once proposed Zooey Deschanel for the lead.

In reaction to the lawsuit, Fox demanded a dismissal, stating in court papers that the "only similarities between the works arise from general, non-protectable ideas," that there were big differences in how the different works treated the underlying concept of a woman who leaves a bad relationship and moves in with three single men.

This week, U.S. District Judge Stephen Wilson declined to weigh in on the subject of substantial similarity, but only because he was rather confused about what was at issue.

"Much of the parties’ arguments surrounding this issue illustrates a more fundamental problem with Plaintiffs’ copyright infringement claims: they are ambiguous," he writes.

The judge points out that Counts and Gold have copyright registrations on four versions of Square One, and notes "each of these versions is a separate work which might be infringed by Defendants."

Does the New Girl pilot infringe the proposed movie version? Does the series at large infringe the Square One scripts?

"It is no wonder that Plaintiffs and Defendants disagree about which versions of which works are relevant to Plaintiffs’ claim," writes the judge. "Plaintiffs’ infringement claim references four copyrighted versions of Plaintiffs’ script, Meriwether’s 'Chicks and Dicks' pilot script, Defendants’ pilot episode, and Defendants’ multiseason television series. It is thus impossible to discern which of Plaintiffs’ works was purportedly infringed by which of Defendants’ works."

Begging for more clarity and precision, the judge dismisses the complaint without prejudice, meaning it can be brought again. However, some of the plaintiffs' claims appear to be in serious danger.

Counts and Gold brought an implied-in-fact contract claim and a quantum meruit claim based on what they believed was promised to them when shopping around their script. The fatal defect appears to be failing to file a lawsuit soon enough. In the original lawsuit, there was an allegation that Fox had at one point a couple years ago extended a $10,000 settlement offer, which was rejected. The plaintiffs changed lawyers, but might not have gotten an explicit tolling agreement so as to extend the time to file the claim before running into statute of limitations.

The judge signals further problems with the contract claims like the possibility of copyright preemption. And as far as a claim for equitable relief based on the "right of attribution," the judge says that the Copyright Act recognizes only a limited right of attribution, applicable only to works of visual art. Nevertheless, the judge isn't quite ready to rule out these claims altogether, dismissing them just without prejudice.

As Judge Wilson writes, "Though the Court seriously doubts that Plaintiffs can plead a valid claim based on their right to be credited as New Girl’s creators, it cannot say that such a claim is impossible."

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner