Judge Gregory Keosian, Case Number: 23STCV20204, Date: 2023-11-02 Tentative Ruling

Defendants CBS Broadcasting, Inc., Jodi Roth, and Yacht Money, LLC’s Demurrer to the Complaint is SUSTAINED without leave to amend.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants CBS Broadcasting, Inc., Jodi Roth, and Yacht Money LLC (Defendants) demurrer to the single claim for breach of implied contract in Plaintiff Accelerated Global Content, LLC’s (Plaintiff) Complaint, on the grounds that Plaintiff’s alleged show idea is not substantially similar to the show ultimately produced by Defendants — Superfan — particularly given the prior copyright registration filed by Keltie Knight, alleged to be one of the show’s producers, involving a similar show concept. (Demurrer at pp. 10–15.)

The pertinent allegations are these. Plaintiff in July 2019 pitched a TV show to CBS entitled The Fandom. (Complaint ¶¶ 12, 22.) A slideshow of the show’s structure and features (or “deck”) proposed the following show structure:

· A different musical artist would headline every episode, and five contestants (or “Superfans” of that performer) would compete in elimination-challenges, overseen by three celebrity panelists and one secret panelist;

· The first round of challenges would consist of performances by the contestants, showcasing their unique talents and “fandom” for the guest artist, with the eliminated contestant determined by audience vote;

· The second round would consist of trivia about the guest artist, using audio-visual clues, such as “an Instagram post, childhood video clip, music video excerpt, an instrumental portion of a song”;

· After an appearance or performance by the guest artist, the third round would consist of a karaoke-style challenge, to determine if the contestants could remember the lyrics to songs by the guest artist, with the eliminations once again determined by audience vote;

· After the secret panelist reveals their identity, the final round would consist of the two remaining contestants once again showcasing their talents, with the winner determined by audience vote;

· The winner would then be announced on stage, followed by a performance by the guest artist.

The Complaint identifies several features of this show that are similar to the Superfan show that CBS later released, including the following:

· Each episode features a different musical artist and five contestants who are fans of the artist;

· The show consists of four elimination rounds of play, with the final round consisting of the two remaining contestants in a “head-to-head” challenge;

· The winning contestant is decided by audience vote, and the show concludes with a performance by the guest artist;

· The challenges, other than the head-to-head, consist of audio-visual and trivia-based questions to the contestants, such as identification of snippets of songs and guessing .

Defendants argue, however, that any similarity between their Superfan and Plaintiff’s The Fandom carries no inference of unlawful copying, because Defendants were in possession of an earlier work containing the same key elements upon which Plaintiff relies. Specifically, Defendants ask this court to take judicial notice of a copyright certificate issued to Keltie Knight — alleged in the Complaint to be one of the creators of Superfan and the co-founder of Defendant Yacht Money, LLC (Complaint ¶¶ 32–35) — for a show entitled Fans vs. Bands, dated August 6, 2015, some four years before Plaintiff’s alleged Fandom pitch. (RJN Exhs. A, B.) The copyright certificate attaches a deck prepared for the latter show, containing the following elements:

· Fans vs. Bands is a five-contestant game show built around an episodic musical guest and contestants (called “super fans”) who compete in elimination challenges;

· The first round begins after a musical performance by the guest artist. The contestants answer trivia questions, and two of the five contestants are eliminated;

· The second round is also-trivia based, but the contestants also compete against the guest artist in answering trivia questions about that artist. Two more contestants are eliminated, leaving one contestant to compete against the guest;

· After another musical performance, the final round begins, in which the final contestant and the guest artist compete in a slapstick challenge, such as “a pie-eating contest, bobbing for donuts, a mystery balloon piñata maze,” etc. After which, either “fans” or “bands” is deemed the winner.

“In an idea submission case such as this, to prevail on a cause of action for breach of implied-in-fact contract, plaintiffs must show (1) they clearly conditioned the submission of their ideas on an obligation to pay for any use of their ideas; (2) the defendants, knowing this condition before the plaintiffs disclosed the ideas, voluntarily accepted the submission of the ideas; and (3) the defendants found the ideas valuable and actually used them—that is, the defendants based their work substantially on the plaintiffs' ideas, rather than on their own ideas or ideas from other sources.” (Spinner v. American Broadcasting Companies, Inc. (2013) 215 Cal.App.4th 172, 184.) “In the absence of direct evidence, “use” of an idea can be inferred from evidence showing the defendant had access to the plaintiff's idea and the parties' ideas are similar.” (Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1073.)

The purpose of the substantial-similarity analysis is to answer the question whether the defendant copied the work of the plaintiff. Ordinarily, similar elements between known work of the plaintiff and the defendant's work will, depending on the degree of uniqueness and originality of the element, support such an inference. However, where defendant owns a prior work containing the same elements, he has no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another what he could legally copy from himself. Therefore, where an element occurs both in the defendant's prior work and the plaintiff's prior work, no inference of copying can be drawn.

Knight’s preexisting copyright for Fans vs. Bands rebuts a central feature of Plaintiff’s Complaint. Plaintiff’s case centers on the allegation, “The premise and structural spine of Superfan is virtually indistinguishable from . . . The Fandom, utilizing the concept of a competition involving the biggest fans of a particular music group or star where contestants participate in a variety of challenges which relate in some way to the artists featured in each episode.” (Complaint ¶ 43.) This allegation, however, describes Fans vs. Bands just as well as Plaintiff’s proposed program. And “where defendant owns a prior work containing the same elements, he has no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another what he could legally copy from himself.” (Ryder, supra, 246 Cal.App.4^th at p. 1075.)

Plaintiff’s opposition to the present demurrer does not take adequate account of the Fans vs. Bands copyright, except to argue that this court should not consider it. Plaintiff argues that there is no authority for the proposition that a copyright to a different show can be dispositive of Plaintiff’s implied contract claims. (Opposition at p. 10.) But this ignores the authority cited in Defendants’ demurrer, which holds that where a defendant owns a prior work containing the same elements, their ownership of a work containing the same elements rebuts an inference of use. (Ryder, supra, 246 Cal.App.4^th at p. 1075.) Plaintiff also argues that, although this court may take judicial notice of the copyright certificate, it may not take judicial notice of the “truth” of the statements contained therein. (Opposition at p. 11.) But the “truth” of the copyrighted materials is not the point; the materials are a proposal for a show, not statements of fact.

Plaintiff briefly argues that Fans vs. Bands is much less similar to the show that became Superfan than what they pitched as The Fandom. (Opposition at p. 11.) Plaintiff argues that Fans vs. Bands contained two musical performances, while The Fandom (like Superfan) contained only one. (Opposition at p. 11.) Plaintiff also notes that the final round of Fans vs. Bands called for a “viral,” contestant vs. guest artist challenge, while no such thing appears in either The Fandom or Superfan. (Opposition at p. 11.)

These arguments are unpersuasive, as Superfan has vastly more in common with Fans vs. Bands than Plaintiff’s The Fandom.[1] While Superfan’s contestants are picked from the audience, as are those in Fans vs. Bands, the contestants in Fandom emerge onstage as performers with particular talents to showcase throughout the show. In Superfan and Fans vs. Bands, all challenges save the final challenge are trivia-based. But all challenges in The Fandom (save the single trivia round) are performance-based, with the contestants either presenting their unique talents or performing in a karaoke-lyrics contest. Plaintiff’s proposal for The Fandom makes much of a celebrity panel with a single mystery panelist, whose identity is revealed near the end of the show. Yet neither Fans vs. Bands nor Superfan contain these elements. In short, The Fandom proposed a talent competition with a celebrity panel, which Superfan is not. Fans vs. Bands proposed a trivia-based fan competition, which is what Superfan turned out to be.

[1] The issue of substantial similarity “is frequently resolved as a matter of law if there is no substantial similarity between the works,” including on demurrer. (Ryder, supra, 246 Cal.App.4th at p. 1076 [citing cases].)