Shull v. Sorkin


20-3529 Shull v. Sorkin UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of July, two thousand twenty-one. Present: DEBRA ANN LIVINGSTON, Chief Judge, ROBERT D. SACK, DENNY CHIN, Circuit Judges. _____________________________________ DENISE K. SHULL, THE RETHINK GROUP, INC., Plaintiffs-Appellants, v. 20-3529 TBTF PRODUCTIONS, INC., SHOWTIME NETWORKS INC., CBS CORPORATION, BRIAN KOPPELMAN, DAVID LEVIEN, DAVID NEVINS, ANDREW ROSS SORKIN, Defendants-Appellees. _____________________________________ For Plaintiffs-Appellants: AVRAM TURKEL, Borstein Turkel, P.C., New York, NY; Jonathan E. Moskin, on the brief, Foley & Lardner LLP, New York, NY 1 For Defendants-Appellees: ELIZABETH A. MCNAMARA (Rachel F. Strom and Meenakshi Krishnan, on the brief), Davis Wright Tremaine LLP, New York, NY Appeal from a judgment and order of the United States District Court for the Southern District of New York (Daniels, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court are AFFIRMED. Plaintiffs-Appellants Denise K. Shull (“Shull”) and The ReThink Group, Inc. (together, “Plaintiffs”) commenced this action against Defendants-Appellants TBTF Productions, Inc., Showtime Networks Inc., CBS Corporation, Brian Koppelman, David Levien, and Andrew Ross Sorkin (collectively, “Defendants”) on December 31, 2018, alleging, inter alia, that Defendants committed copyright infringement. Broadly, Plaintiffs allege that Defendants’ television show, Billions, is an unauthorized derivative work based on key elements of Plaintiffs’ book, Market Mind Games: A Radical Psychology of Investing, Trading, and Risk (“Market Mind Games”). In Plaintiffs’ view, Defendants portray the fictional character of Dr. Wendy Rhoades (“Dr. Rhoades”) in Billions in substantially the same manner as Shull portrays the fictional characterization of herself in Market Mind Games. The district court granted Defendants’ motion to dismiss on October 4, 2019, concluding that Plaintiffs failed to state copyright infringement claims because they failed to allege plausibly that Market Mind Games and Billions are substantially similar. After the district court entered judgment, Plaintiffs filed a motion to vacate or set aside the judgment and for leave to file an amended complaint, which the district court denied. Plaintiffs appeal, challenging the district court’s judgment dismissing their complaint and order denying their post-judgment motion for leave to amend. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 2 A. Motion to Dismiss We …

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