HBO’s ‘Ballers’ Is Not an Infringement

Friday, February 23, 2018

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Ninth Circuit:

HBO’s ‘Ballers’ Is Not an Infringement

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday affirmed the decision of District Judge George Wu of the Central District of California dismissing a copyright infringement action based on the HBO series, “Ballers.”

The Ninth U.S. Court of Appeals yesterday affirmed the dismissal of an action against HBO and others claiming that the comedy-drama series “Ballers” infringes on the copyright for a proposed series called “Off Season.”

Writers Everette Silas and Sherri Littleton asserted in their Dec. 17, 2015 complaint filed in the U.S. District Court for the Central District of California that “stories, character traits, scenes, and incidents portrayed in the two works, Ballers and Off Season, are, in many respects, virtually identical and strikingly similar.”

However, Judge George H. Wu, in dismissing the action on July 25, 2016, declared:

“The Court would find that the only actual alleged similarities between the two works relate to unprotected elements. Additionally, the Court would find that the alleged similarities between protected elements of the works are not actual similarities that could result in a finding of substantial similarity under the extrinsic test.”

Affirming, the Ninth Circuit said yesterday in a memorandum opinion:

“Applying the ‘extrinsic test,’…we objectively compare Appellants’ ‘Off Season’ with ‘Ballers’ to determine whether the two works are substantially similar only as to protectable elements….Here, despite some surface similarities, the two works are clearly different….As the district court correctly explained in great detail, the plots, characters, themes, moods, settings, pace, dialogue, and sequence of events between the two works are similar in only the broadest strokes. The alleged similarities identified by Appellants fall under the category of general plot ideas, familiar stock scenes, or scenes-a-faire, which are not protectable.”

Wu set forth in his order dismissing the action:

“[A]lthough there are some generic similarities between Ballers and Off Season, there are no similarities between the actual objective details of the works. First, Plaintiffs allege that both works ‘follo[w] an African American football player who is essentially a business man who tries to monetize his friendships with other professional football players and athletes to help grow his business.’…However, even assuming that this allegation represents a protectible element and not a basic plot idea, it significantly misrepresents the works in multiple ways and is thus insufficient to state a claim for infringement.”

Wu pointed out that the main character in “Ballers,” Spencer Strasmore, is an ex-football player, while the chief character in “Off Season,” Nathaniel Brandon Hall (“NBH”), is currently a player; Strasmore works for a wealth management group, while NBH owns a nightclub; Strasmore “monetizes his friendships” by managing players’ finances while NBH persuades other players to spend money at his club.

The judge recited that that the plaintiffs contended both Strasmore and NBH served as a “big brother/mentor” players. He termed the claim “inaccurate,” pointing out that Strasmore provides financial guidance while NBH provides drugs.

Both shows are set in Miami. However, Wu said, “[t]he mere fact that the two shows are set in the same city does not give rise to a finding of substantial similarity of copyrightable expression.”

The judge went on to observe:

“One actual similarity between the two works is that they are both set entirely during professional football’s off season. However, this is a general story idea that is not a copyrightable element and therefore cannot be considered when conducting the extrinsic analysis.”

Ballers debuted on HBO on June 21, 2015. A fourth season is planned for this year.

The case is Silas v. Home Box Office, Inc., No. 16-56215.