MANHATTAN (CN) — The Second Circuit refused to revive copyright claims from an executive-performance coach who says the Showtime hedge fund drama “Billions” copied her story and personal method of psychoanalytic finance coaching.
“Plaintiffs, among other things, cannot copyright the idea that one should eat, sleep, and exercise to perform well,” the Second Circuit wrote Monday morning in a summary order.
“The stock similarities between Dr. Rhoades and the fiction version of Shull cannot support a plausible infringement claim. Nor can the supposed similarities between the psychological advice that Dr. Rhoades and Shull offer.”
The unsigned, 8-page order affirms 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 appealed after the Southern District of New York found that “Billions” and “Market Mind Games” are not substantially similarly.
A representative for Shull immediately rebutted the Second Circuit ruling on Monday morning, asserting that the court of public opinion stands with Shull.
“The character of Wendy Rhoades in ‘Billions’ shares numerous personal and professional characteristics with Ms. Shull and often borrows her coaching advice from Ms. Shull’s book Market Mind Games,” a spokesman for Shull said Monday morning.
“The public consistently recognizes this. It’s a deep injustice that the courts do not,” the statement continues.
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, Shull’s attorney Avram Turkel with firm Borstein Turkel argued to the Second Circuit in appeal 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,” Turkel wrote in January.
U.S. Circuit Judge Debra Ann Livingston was joined on the three-judge panel by Circuit Judges Robert Sack and Denny Chin.
During oral arguments in May, the appellate panel appeared unlikely to revive Shull’s case. In a blog post after the hearing, Shull pointed to the trial court’s denial of her post-judgement motion to replead in an amended complaint as “the cornerstone of our appeal.”
The Second Circuit panel was not persuaded to rule that U.S. District Judge Daniels had improperly denied her motion for leave to amend.
“The district court properly dismissed Plaintiffs’ copyright infringement claims after careful review of the works, in their entirety, led it to conclude they are not substantially similar as a matter of law. No amount of repleading can remedy this deficiency,” the summary order states.
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