Forecasting defeat for a Wall Street whisperer’s copyright suit, a Second Circuit judge asked so what if she sees herself in the character who coaches stock traders on the sleek Showtime series.
MANHATTAN (CN) — The Second Circuit appeared unlikely Thursday to revive claims from an executive performance coach who says the hedge fund drama “Billions” copied her story and personal method of psychoanalytic finance coaching.
“That’s enough,” said U.S. Circuit Judge Robert Sack, interrupting an attorney for the coach during a remote oral arguments on Thursday morning.
“I don’t mean to make light of it — I really don’t — but I was thinking as I was reading this about a television play in which the psychiatrist says to the patient, ‘why don’t you lie down here on the couch and tell me about your relationship with your mother.’ Now does Freud’s estate get to sue?
“It’s so generalized,” Sack continued, “one would think that there’s nothing unique and therefore copyrightable.”
The Clinton appointee is part of a three-judge panel considering the dismissal of a complaint that says Wendy Rhoades, the in-house performance coach at a fictionalized hedge fund featured on the Showtime series “Billions,” rips off details that real-life coach Denise Shull wrote about in her 2012 book “Market Mind Games.”
Shull, who founded the consulting firm ReThink Group, alleged in her a December 2018 complaint that she met with the creators of “Billions” and provided them with “novel ideas, information and insight relating to modern psychoanalysis, neuro-psychoanalysis, neuroeconomics and the subject matter that eventually became the focus of the ‘Billions’ series.”
The allegations failed to make an impression, however, on U.S. District Judge George Daniels. When he tossed the case in October 2019, Daniels called it a considerable problem “that these works do not seem to resemble each other in the least.”
“And the issue does not lie in the fact that one is a book and one is a television show, but the fact that plaintiffs’ work is an academic work which interweaves fiction to better help the reader understand Shull’s ideas, while defendant’s work is a television show, based in the Southern District of New York, to demonstrate the drama that lies in the age old trifecta of money, power and sex,” the opinion explains.
Fighting to revive the suit, attorney Avram Turkel with firm Borstein Turkel has told the Second Circuit in argument briefs that Shull’s is a “unique” method of psychotherapeutic coaching strategy — “radically different from that espoused by any other performance coach.”
“Whereas other performance coaches focus on strategies, goal-setting, positive thinking and creating certain habits for success, Ms. Shull, instead, focuses on all of a client’s feelings and emotions, often delving into her clients’ past to help them understand their present day decision-making and emphasizing the information in the conventionally maligned feelings of fear, frustration, guilt and disappointment,” Turkey wrote in January.
“In essence she is a woman in the hedge fund world who uniquely coaches mostly male traders that trading is manifestation of self-image rather than just good or bad habits,” the brief says of Shull later.
But the appellate panel seemed skeptical of Turkel’s claims Thursday during 20-minute oral arguments.
“Are you claiming that the concept of a female performance coach at a hedge fund is copyrightable,” asked U.S. Circuit Judge Denny Chin.
“Specifically not,” Avram responded. “That’s where the District Court came down, and that’s not the allegation of the complaint,” he said, insisting that U.S. District Judge Daniels had overlooked Shull’s “essential argument” concerning unique neuropsychoanalysis method as expressed in “Market Mind Games” and focused instead on the protectability of her fictional persona of a female in-house performance coach.
“The essential argument being that the Shull method, which is the assessment of the individual for their past trauma and how that effects their unconscious in the business of trading … how that was copied by ‘Billions’,” Turkel explained.
Showtime’s attorney Elizabeth McNamara meanwhile pushed the court to affirm dismissal, calling Shull’s arguments “indisputably futile.”
An attorney with Davis Wright Tremaine, McNamara told the Obama-appointed Judge Chin on Thursday that he “hit the nail on the head.”
“She is trying to a state a claim … on really an abstract idea of a method that is not copyrightable,” McNamara said.
Judges Sack and Chin were joined on the panel by Chief U.S. Circuit Judge Debra Ann Livingston, a George W. Bush appointee.
The panel reserved its decision on Shull’s appeal.
A year after her District Court defeat, Shull claimed the show’s creators were trolling her by dressing the Wendy Rhoades character, played by Maggie Siff, in a distinctive navy blue pencil dress with an asymmetrical neckline that Shull had worn during two YouTube interviews the previous year.