GERVASE PETERSON, et al., v. KEN GOLDIN, et al.
No. 1:23-cv-2866
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
April 29, 2024
O‘HEARN, District Judge.
OPINION
APPEARANCES:
COHEN FINEMAN, LLC
1999 Marlton Pike E.
Suite 4
Cherry Hill, NJ 08003
On behalf of Plaintiffs.
Jenny R. Kramer
ALSTON & BIRD LLP
90 Park Avenue
New York, NY 10016
Craig Carpenito
KING & SPALDING LLP
1185 Avenue of the Americas
New York, NY 10036
On behalf of Defendants.
O‘HEARN, District Judge.
This matter comes before the Court on Ken Goldin (“Goldin“); Goldin Auctions, LLC (“Goldin Auctions“); Spoke Studios, LLC (“Spoke“); Wheelhouse Entertainment, LLC (“Wheelhouse“); and Netflix, Inc.‘s (“Netflix“), (collectively, “Defendants“) Motion to Dismiss (ECF No. 27) the Amended Complaint filed by Plaintiff Gervase Peterson (“Plaintiff“).1 (ECF No. 25). The Court did not hear oral argument pursuant to
I. BACKGROUND
King of Collectibles: The Goldin Touch (“KOC“) is reality show streaming on Defendant Netflix‘s streaming service. (Am. Compl., ECF No. 25 at ¶ 3). It premiered in May of 2023 and follows Ken Goldin‘s business, Goldin Auctions. (ECF No. ¶¶ 3, 56). Plaintiff alleges that KOC infringes on his coрywritten idea for a similar show. (ECF No. ¶¶ 3-8).
Plaintiff owns two copywritten works: a “script/screenplay entitled The Goldin Boys,” and a video production entitled Goldin Boys, the former of which is sometimes referred to as a “treatment,”2 and the latter a “sizzle reel”3 (collectively, “the registered works“). (ECF No. 25 at ¶¶ 2-8, 19-20). Defendant Goldin Auctions—a Nеw Jersey based business that buys and sells sports memorabilia and other collectible items—is the general subject of the registered works. (ECF No. 25 at ¶¶ 22-23).
Goldin was introduced to Plaintiff in 2019 through a then-employee of Goldin Auctions. (ECF No. 25 at ¶ 22). By June 2019, Plaintiff was “shoрping” the treatment to producers. (ECF No. 25 at ¶ 25). Plaintiff met with Goldin in November 2019 to discuss production of the sizzle reel, which was shot in December 2019 in
After the Summer of 2020, communication between Plaintiff and Goldin ceased. (ECF No. 25 at ¶ 48). Plaintiff alleges that Goldin and Goldin Auctions “shopped” the sizzle reel to Spoke, Wheelhouse, and Netflix. (ECF No. 25 at ¶ 49). KOC premiered on Netflix in May 2023.4 (ECF No. 25 at ¶ 3). The show generally follows Goldin and Amerman and includes interviews with sport celebrities. (ECF Nо. 25 at ¶¶ 54-55). KOC has since been renewed for a second season. (ECF No. 25 at ¶ 57).
II. PROCEDURAL HISTORY
On May 25, 2023, Plaintiffs commenced this action seeking actual and statutory damages for copyright infringement under the
III. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(6).
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Further, a plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). “A motion to dismiss should be granted if the plaintiff is unable to plead ‘enough facts to state a claim to relief that is plausible on its face.‘” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Twombly, 550 U.S. at 570).
IV. DISCUSSION
A. Plaintiff Fails to State a Claim Under the Copyright Act.
Plaintiff alleges that he owns the rights to a reality television-style show about Goldin Auctions and that the similarities between Goldin Boys and KOC cоnstitute
The Copyright Act “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); see also
Reality television shows are frequently found to be rife with unprotectable ideas and scènes à faire. See Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288, 1295 (C.D. Cal. 2008) (explaining that, “[p]lainly the ‘reality’ aspect of [a] show could hardly be considered original or protectable“); see also Gray-El v. Jennifer Lopez/Nuyorican Prods., Inc., No. 19-10952, 2019 WL 8750506, at *12 (E.D. Mich. Dec. 18, 2019) (relying on Milano for the proposition that “the general theme of reality programming . . . is an unprotectable idea“). For this reason, courts rоutinely dismiss copyright claims alleging that the idea for a reality show is protectable and has been infringed. See, e.g., Milano, 584 F. Supp. 2d at 1295-96 (finding a weight loss reality show is not protectable under the Copyright Act); Gray-El, 2019 WL 8750506, at *12 (recommending that a copyright claim be dismissed becausе “the shared premise of . . . a dance competition show
. . . is unprotectable“), adopted 2020 WL 1060642 (E.D. Mich. Mar. 5, 2020); Williams v. A&E TV Networks, 122 F. Supp. 3d 157, 163 (S.D.N.Y. 2015) (granting a motion to dismiss because there was no “enforceable copyright in the general idea for a reality show about arranged marriages or marriage between strangers“); Castorina v. Spike Cable Networks, Inc., 784 F. Supp. 2d 107, 111 (E.D.N.Y. 2011) (granting a motion to dismiss because the “basic concept of a sports reality show” was unprotectable) (internal quotations omitted); Bethea v. Burnett, No. 04-7690, 2005 WL 1720631, at *13 (C.D. Cal. June 28, 2005) (holding that the idea of having Donald Trump host a corporаte-themed reality show was not protectable). Plaintiff‘s registered works are no exception. The five elements of the registered works that he
First, Plaintiff alleges that, by featuring Defendant Goldin and his employee Amerman in KOC, Defendants hаve infringed upon his registered works. (ECF No. 25 at ¶ 56). However, “characters . . . [who] are as a practical matter indispensable . . . in the treatment of a given topic” are considered unprotectable scènes à faire. Pino, 2008 WL 704386, at *5 (internal quotations omitted). The Court is hard pressed to imagine two characters that would be more indispensable to a reality show about a business than its founder and a key employee. Moreover, courts routinely find that real people cannоt be copywritten. See, e.g., Bethea, 2005 WL 1720631, at *13 (“Plaintiffs cannot copyright the idea of having . . . Donald Trump host a reality television program.“); Sawicky v. AMC Networks, Inc., No. 18-114, 2018 WL 11292263, at *2 (C.D. Cal. July 11, 2018) (finding that the children of famous musicians could not be copywritten because the plaintiff did “not create аny characters, and the general idea of casting children of famous people is not protectable expression.“). Here, as in Sawicky, Plaintiff did “not create any characters.” 2018 WL 11292263, at * 2. Defendant Goldin and his employee Amerman are real people portrаying themselves and are indispensable from the daily functions of Goldin Auctions. Such scènes à faire is clearly unprotectable.
Second, Plaintiff argues that Amerman‘s “affable second-in-command foil” is protectable and, because it appears in KOC, Defendants have infringed on thе registered works. (ECF No. 25 at ¶¶ 54, 56). For the same reasons that Amerman himself is not protectable, neither is his personality. See id. at *5 (relying on Bethea, 2005 WL 1720631, for the proposition that “a creator cannot copyright the idea of casting a real person on а show.“). Moreover, the “‘righthand-man’ character is a generic prototype . . . not entitled to copyright protection.” Walker v. Kemp, 587 F. Supp. 3d 232, 244 (E.D. Pa. 2022).
Third, Plaintiff submits that KOC‘s “segments featuring celebrity athletes discussing their stories about collectibles” infringes on the registered works. (ECF No. 25 at ¶ 56). However, Plaintiff is unable to copyright the general idea of celebrity athletes discussing their own stories and collectibles. See, e.g., Castorina, 784 F. Supp. 2d at 112 (“stock elements . . . largely inherently functional to the idea of a sports reality show” are unprotectable); see also Bethea, 2005 WL 1720631, at *13 (corporate-themed reality show with celebrity host unprotectable). These are “elements generic to the idea of a sports-themed reality television show” that focuses on sports memorabiliа and related collectibles. Pino, 2008 WL 704386, at *5. Such generic ideas are considered “stock elements typical of the reality show genre and scènes à faire [that would] flow[] from” any sports memorabilia-themed reality show. Id.
Fourth, Plaintiff attempts to argue that Defendants have infringed on the registered works because KOC features segments about Jackie Robinson collectibles. (ECF No. 25 at ¶¶ 52, 56). Any reality show that focuses on sports memorabilia will feature collectibles from high-profile athletеs. Such scènes à faire or “stock elements common to reality shows” are not protectable because they are “elements generic to the idea of a sports-themed [collectibles] reality television show.” Id. Moreover, “historical facts,” like those about Jackie Robinson, “are unprotectable.” Hayes v. Minaj, No. 12-7972, 2012 WL 12887393, at *5 (C.D. Cal. Dec. 18, 2012).6
Fifth and finally, Plaintiff alleges that KOC “shares the same pacing, look, feel and editing of The Goldin Boys.” (ECF No. 25 at ¶ 56). Plaintiff does not elaborate. Such conclusory and “formulaiс recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678. Though the Court views allegations in the Amended Complaint in a light most favorable to the Plaintiff, as it must at this stage, that lens extends only to well-pleaded allegations; “mere conclusоry statements . . . do not suffice.” Id.
After analyzing the five elements Plaintiff alleges are protectable, the Court finds that all are deemed ideas and scènes à faire that cannot be protected under the Copyright Act. “After excising all unprotectаble ideas and scènes à faire,” the Court is left with no remaining protectable elements to compare to the allegedly infringing work to determine if they are “substantially similar.” Tanksley, 902 F.3d at 175. Therefore, Defendants’ motion to dismiss Count I must be granted.
B. Plaintiff Fails to State a Claim under the UPA.
Count II of Plaintiff‘s Amended Complаint alleges that he created a partnership with Defendants Goldin and Goldin Auctions “when the[y] decided to make a reality show together that culminated in the making and production of The Goldin Boys’ ‘sizzle reel.‘” (ECF No. 25 at ¶ 76). Defendants argue that no partnership agreement exists and, even if it did, Plaintiff‘s claim would be preempted by the Copyright Act. (ECF No. 27 at 20-21).
Plaintiff has failed to respond to Defendants’ argument as to this claim and in his opposition argues only that he “has made out colorable claims to overcome a motion to dismiss on Count I.” (ECF No. 31 at 1). “[C]ourts in this District have consistently held that the failure to respond to a substantive argument to dismiss a count, when a party otherwise files an opposition, results in a waiver of that count.” D.A. v. Finish Line, Inc., No. 21-16454, 2022 WL 7989391, at *2 (D.N.J. Oct. 14, 2022) (collecting cases). “Because [Plaintiff] has not responded to Defendant‘s Motion to Dismiss Count[ II], [Plaintiff] has waived th[is] claim[].” On Location, Inc. v. Popovich, No. 22-0893, 2023 WL 2674843, at *4 (D.N.J. Mar. 29, 2023).
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss, (ECF No. 27), is GRANTED. An appropriate Order accompanies this Opinion.
CHRISTINE P. O‘HEARN
United States District Judge