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Second Circuit Holds that Billions’ Legal Drama Will Stay Only Onscreen

While the author of Market Mind Games: A Radical Psychology of Investing, Trading, and Risk may have hoped to obtain monetary damages, she will not be seeing billions.  In 2018, author and professional performance coach Denise Shull and The ReThink Group, Inc. commenced an action in the United States District Court for the Southern District of New York against Defendants TBTF Productions, Inc., Showtime Networks Inc., CBS Corporation, Brian Koppelman, David Levien, and Andrew Ross Sorkin, alleging copyright infringement over the hit Showtime television show Billions.  Specifically, Shull alleged that one of the show’s main characters, Dr. Wendy Rhoades, is an unauthorized derivative work based on her book. 

After the S.D.N.Y. dismissed the action in 2019, Shull appealed to the United States Court of Appeals for the Second Circuit.  On July 19, 2021, the Second Circuit affirmed the District Court’s ruling, holding that there is no substantial similarity between Market Mind Games and Billions.

Sorkin, a financial journalist, wrote Billions, a fictionalized dive into the glamour and gamesmanship of New York City’s finance world.  It stars Paul Giamatti as U.S. Attorney Chuck Rhoades who seeks to prosecute Damian Lewis’ character, hedge fund manager Bobby “Axe” Axelrod, for his aggressive but often illegal tactics.  Dr. Rhoades, played by Maggie Siff, is a psychiatrist by trade, Axelrod’s in-house performance coach, and Chuck Rhoades’ wife.

Shull alleged that Sorkin sought her help in developing the Dr. Rhoades character but failed to compensate her.  Shull’s lawsuit centers on the copyright claim that Billons portrays Dr. Rhoades in substantially the same way that Shull portrays herself in Market Mind Games

According to the Complaint, Shull uses neuropsychoanalysis, neuroeconomics, and modern psychoanalysis to coach her clients, hedge fund portfolio managers.  She further alleges that Market Mind Games, an academic book published in 2012, is the only book to discuss these three topics as applied to finance and that in it, she uses fictionalized accounts from her own experiences. 

Sorkin and his co-defendants moved to dismiss for failure to state a claim.  First, the Second Circuit affirmed the District Court’s holding that Billions and Market Mind Games are not substantially similar under the “more discerning observer” test.  The Second Circuit held, “[t]he plot of Market Mind Games, to the extent there is one, is wholly dissimilar from that of Billions.  Likewise, the similarities that exist between Dr. Rhoades in Billions and the fictional version of Shull in Market Mind Games—namely their gender and occupation—are generalized and non-protectible.”  The Court continued, holding that “the total concept and feel of Market Mind Games is quite different from that of Billions: Whereas Market Mind Games is an academic book that draws on fictional stories to illustrate Shull’s ideas, Billions is an entirely fictional serial television drama…”  Second, the Second Circuit also affirmed the District Court’s holding that Billions and Market Mind Games are not substantially similar under the “quantitative and qualitative” approach because “the stock similarities between Dr. Rhoades and the fictional version of Shull cannot support a plausible infringement claim.” 

The Second Circuit’s opinion serves as a reminder that facts and ideas are not copyrightable.  As the Court noted, one “cannot copy the idea that one should east, sleep, and exercise to perform well.” 

The case is Shull v. Sorkin et al., No. 20-3529, 2021 WL 3027181 (2d Cir. July 19, 2021). 

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XI, Number 210
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About this Author

Associate

Mary Kate Brennan focuses on trademark, false advertising, and copyright litigation for a wide variety of clients and industries, including fashion, consumer goods, and media. In addition to handling matters before state and federal courts and the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office (USPTO), she has extensive experience planning and executing multijurisdictional litigation strategies on a global scale.

Mary Kate has accrued significant courtroom experience through both government service and private...

202 408 4340
Margaret A. Esquenet Copyright & Trademark Attorney Finnegan, Henderson, Farabow, Garrett & Dunner Washington, DC
Partner

Focusing on U.S. and global copyright, advertising, and trademark law, Margaret Esquenet brings a holistic, business-first approach to legal issues. Advising clients across industries—from consumer goods and media companies to tech firms and pharmaceutical manufacturers—she provides legal counsel across all media, in all facets of branding, advertising, and marketing. 

In addition to an active licensing and counseling practice, Margaret serves as first chair in federal, state, and administrative TTAB litigations, both advocating for clients’ creative efforts and defending them...

202-408-4007
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