ROBINSON v. VIACOM INTERNATIONAL, INC. This case is a good look behind the sceens at how sitcoms are put together and the money fights we never get to hear about. Ann B. Davis made a cameo appearance in the sitcom "Hi Honey", the subject of the case. SUMMARY: Six episodes of "Hi Honey" were telecast on ABC and Nickelodeon in July and August, 1991, with additional episodes later telecast on Nickelodeon. In Episode Six, the Sitcom Relocation Program (SRP) announces that it is considering returning the Nielsons' show to an open television slot. However, the Nielsons decide to remain because of Mike's heartfelt need for a surrogate family, and they sabotage their opportunity to return to television by pretending to be a dysfunctional modern family during the SRP inspection. The SRP inspector, accompanied by Ann B. Davis (known for portraying Alice, the family maid on The BRADY BUNCH show), is horrified by the Nielsons' new appearance, and he awards the open television slot to reruns of the BRADY BUNCH. CASE: TOM ROBINSON and PHIL HERTER, Plaintiffs v. VIACOM INTERNATIONAL, INC., MTV NETWORKS, RIPE PRODUCTIONS, INC., PENNY STALLINGS, RICK MITZ, and AMERICAN BROADCASTING COMPANIES, INC., Defendants. 93 Civ. 2539 (RPP) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Copy. L. Rep. (CCH) P27,480 July 13, 1995, FILED July 13, 1995, Decided COUNSEL: Counsel for Plaintiffs: Wright Manning Rips & Maloney, New York, NY, BY: Michael D. Rips. Counsel for Defendants: Santora & Greenfield, New York, NY, BY: Joseph J. Santora. Schneck Weltman Hashmall, New York, NY, BY: David M. Hashmall. JUDGES: ROBERT P. PATTERSON, JR., U.S.D.J. OPINIONBY: ROBERT P. PATTERSON, JR. OPINION: OPINION AND ORDER ROBERT P. PATTERSON, U.S.D.J. Defendants move for summary judgment in this action for (1) copyright infringement under 17 U.S.C. @ 101 et seq., (2) false designation of origin in violation of the Lanham Act, 15 U.S.C. @ 1125(a); (3) and (4) deceptive business practices in violation of New York General Business Law ("NYGBL") @@ 349 and 350; (5) breach of an implied-in-fact contract; and (6) breach of a quasi-contract. Plaintiffs Tom Robinson ("Robinson") and Phil Herter ("Herter") charge Defendants Viacom International, Inc. ("Viacom"), MTV Networks ("MTV"), Ripe Productions, Inc. ("Ripe"), American Broadcasting Companies, Inc. ("ABC"), Penny Stallings, and Rick Mitz with (1) copyright infringement and (2) other unauthorized use of a "Treatment" and a Script created by the two Plaintiffs for a proposed television series to be titled variously as "Deja Vu" or "Four Characters in Search of a Sitcom" (collectively, "Four Characters") based on the production and telecast of a series titled "Hi Honey! I'm Home" ("Hi Honey") by ABC and Nickelodeon/Nick at Nite ("Nickelodeon"). n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 According to the Complaint, Viacom and its division, MTV, own and operate Nickelodeon as a cable television network. Compl. at P 6. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiffs filed their Complaint on April 19, 1993. Federal jurisdiction is asserted pursuant to 17 U.S.C. @@ 101 et seq. and 1051 et seq. (copyright and trademark law), and 28 U.S.C. @@ 1338 (copyright jurisdiction) and 1367(a) (supplemental jurisdiction). Compl. at P 2. Background Herter filed a four-page Treatment of a proposal by Robinson and Herter for a television show called "Four Characters" and a 25-page Script for a pilot episode titled "Moving In" with the Writers Guild of America on or about January 14, 1988. Compl. at P 15; Santora Aff. dated August 15, 1994 ("Santora Aff.") at Exs. B (the "Treatment") and C (the "Script"). In the spring of 1988 Robinson, a screenplay writer, was introduced to television writer Phil Gurin ("Gurin"). After Robinson gave Gurin a copy of "Four Characters" Gurin allegedly told him that "it was a great idea. A great concept." Robinson Dep. at 25. Thereafter, according to the Complaint, Gurin agreed to present the Treatment and Script to Nickelodeon in return for a share of the proceeds and his name was added as a creator to that of Herter and Robinson on those documents. Compl. at P 17. Plaintiffs allege that Gurin began work for Nickelodeon in early 1989 as chief writer on the show "Super Sloppy Double Dare," Compl. at P 17, and that Plaintiffs sought to utilize Gurin's contacts with Nickelodeon executives in order to present "Four Characters" as an appropriate show for Nickelodeon since it was telecasting numerous older television shows. Robinson Dep. at 27-29. Robinson alleges that he gave Gurin a copy of the "Four Characters" Script in about May 1988, id. at 20-21; see also Gurin Aff. at P 1 (admitting reception of script), Gurin Dep. at 27 (same), and promised Gurin a 10% finder's fee if the show were produced by Nickelodeon, Robinson Dep. at 30-31. In the spring or summer of 1989 Gurin allegedly reported to Robinson that he had "put [the "Four Characters" Script] in for coverage with Nickelodeon." Id. at 45; see also Gurin Aff. at P 2 (". . . I said I might be able to present the ["Four Characters"] treatment and a pilot script to Nickelodeon."). By September 1989, Nickelodeon executive Herb Scannell, along with television producer Barry Secunda and his wife Penny Stallings, and television writer Rick Mitz, developed a show for Nickelodeon titled "Hi Honey! I'm Home" ("Hi Honey"). Scannell Dep. at 56-57; Ex. F to Pl. 3(g) St. ("Hi Honey" Outline). In July and August 1991 six episodes of "Hi Honey" were telecast on ABC and Nickelodeon, and additional episodes and reruns were later telecast on Nickelodeon. Compl. at PP 25-26. A. Four Characters "Four Characters" is a situation comedy or "sitcom" intended to elicit humor from a self-referential treatment of this art form which has had a wide, if not deep, influence on American culture. "Four Characters" presents two sharply contrasting families: the Walldenski family, a contemporary American suburban family, and whose house is haunted by the Johnson family, an idealized television family derived from the sitcom archetype dating back to the 1950's. Plaintiffs' work consists of a four-page Treatment of the "Four Characters" series, and a 25-page Script for a pilot episode. 1. The Treatment Plaintiffs' Treatment describes the Walldenskis as "a typical American family of the 80's" composed of parents Bert and Connie, and their children Gary and Shelia. Treatment at 1. Bert works long hours in a tedious aerospace job, and his "two pleasures in life are drinking beer and watching TV[,]" while Connie is described as an attractive woman in her late thirties "lad[]en with maternal guilt" because her long hours of work as a paralegal prevent her from giving the children the attention she feels they need. Id. Their son, Gary, is a high school sophomore who takes advantage of limited parental supervision to play loud music and "share a joint" at home; and Gary's business abilities related to rock music make him a popular "general wheeler dealer" at school. Id. The Walldenski's daughter, Shelia, is a status-conscious "princess" always embarrassed by her family; to remain fashionable she "shoplifts regularly in the finest stores." Id. The Walldenski's house is haunted by the Johnson family, "once America's favorite '50's sitcom family," and also comprising two parents, a son and a daughter. Id. at 2. Bob Johnson is a "gosh-gee-whiz" dad who never seems to work, but he still maintains a comfortable lifestyle which permits him to derive amusement from his children's wacky escapades. Id. Joan Johnson is a devoted wife and homemaker immersed in darning socks and baking brownies. Id. Their children Jeff and Nancy are model students; Jeff is Treasurer of the Junior Achievement club and a varsity baseball pitcher, and Nancy was elected runner-up to the homecoming queen. Id. The Johnsons can only be seen by the Walldenskis, and the Johnsons' unsolicited and simplistic advice from a 1950's era sitcom to the modern problems faced by the Walldenskis is intended to provide humor by exposing "the outmoded morals and ideas of normalcy" presented by the old TV shows. Id. at 4. Plaintiffs' Treatment outlines the plots for five potential episodes in one-paragraph descriptions: (1) Bert attempts to solve a plumbing problem with disastrous results, and Bob provides helpful but tardy advice; (2) after Gary is caught buying beer the Johnsons convince him to try sports, but subsequently the local baseball star is indicted for drunk driving; (3) Joan helps Connie to prepare a home-cooked meal to break a habit of eating fast food, but that evening all the Walldenskis are absent from dinner due to their numerous other activities; (4) Shelia returns stolen sweaters after Nancy reports her theft to the Walldenskis, leaving Shelia with only tattered jeans to wear; and (5) Bert tries to follow Bob's financial advice by buying orange juice futures, but after the market collapses Bert must store his juice in the family swimming pool. Id. at 2-4. 2. The Script Plaintiffs' pilot Script for "Four Characters" titled "Moving In" follows the Walldenskis as they settle into their new suburban home. In the Prologue, Bert is embarrassed by Connie's leadership role in moving the family, and he struggles unsuccessfully to coax Gary into helping. Script at 2-4. As the family argues over how to proceed, the first sign of the ghost family in the house is manifested by loud noise characterized as "CANNED LAUGHTER." Id. at 4. Act One takes place in the new house during an evening about one week later, and while Gary plays his stereo equipment at high volume he is interrupted by Jeff, appearing as a black and white apparition due to "digital decolorization." Id. at 7. Shelia is similarly startled that evening by Nancy in the bathroom. Id. at 9-10. The decolorized Johnson parents meet Bert and Connie in the kitchen and surprise them by finding milk and cookies where there were none before. Id. at 13. In the living room the Walldenskis discover the decolorized Johnsons watching themselves on television in their old sitcom, and learn that their house is haunted by these ghosts from television. Id. at 14-15. Act Two begins several days later as Connie and Shelia prepare for a party by making appetizers in the microwave oven, and Shelia reveals her fear of embarrassment by the Johnsons at the party. Id. at 17-18. At the party Bert is nervous that the Johnsons might appear, but it is Gary's entrance that draws laughter from the guests because he dressed in 1950's style as Jeff recommended, and yet Gary also receives compliments for his outfit. Id. at 20-21. The decolorized Johnsons bring a Jello mold which is the hit of the party, and, although he feared otherwise, Bert is embarrassed to discover that none of the guests can see the Johnsons. Id. at 22-24. The show ends with Bert turning off his bedroom light, only to have Jeff say goodnight. Id. at 25. B. Hi Honey Six episodes of "Hi Honey" were telecast on ABC and Nickelodeon in July and August, 1991, and according to the Complaint additional episodes were later telecast on Nickelodeon. Compl. at PP 25-26; Answer at PP 25-26. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Defendants submitted videotapes of the first four episodes of "Hi Honey," Santora Aff. at Ex. E, and Plaintiffs submitted videotapes of nine subsequent episodes, Pl. 3(g) St. at Ex. H. No scripts of these shows were submitted to the Court. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 1. Episode One Episode One of "Hi Honey" introduces the Duffs as a single-parent contemporary American family living in suburban New Jersey. Elaine Duff is a single mother working for the phone company and raising two sons after her husband Ted "ran away." The Duff's house appears quite messy, and several locks are mounted on the front door. Mike, the older son, is a high school sophomore who apparently spends most of his free time watching television, and he is upset to learn that reruns of his favorite old black and white show, called "Hi Honey! I'm Home," have just been cancelled. Mike's 10-year old brother Sidney, who is usually called Skunk, dresses as a rebel and sports a "punk-style" haircut. A homeless man named Malcolm appears at the Duff's door, and provokes a hostile reaction from Elaine. After returning home from work one day, Elaine drags her two boys to meet their new next-door neighbors, the Nielsons, n3 and to ask them to sign her petition for a woman's right to choose. Honey Nielson greets the Duffs, and invites them into her immaculate house (Elaine rolls her eyes when Honey apologizes for its condition). The decor in the Nielsons' house is dated, and the Nielsons' clothes also reflect fashions from the 1950's. Honey is exuberant and unsophisticated, and constantly offers her guests various baked goods. Mike's suspicions are immediately raised by the Nielsons' resemblance to the "Hi Honey! I'm Home" family, and each detail he observes confirms his feeling that the Nielsons are somehow connected to the show he watches each afternoon. The Nielson children, Chuckie and Babbs, are also naive and wholesome, and Mike immediately shows a love interest in Babbs, his high school classmate. Chuckie is an overweight youngster who often appears in a scouting uniform. Elaine gives Honey a can of Mace as a welcoming present, but Honey mistakes it for perfume. Honey tells Elaine that she can't sign her petition since her husband makes those decisions, but she invites the Duffs for a "Gypsy Goulash" dinner. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The Nielsons are not decolorized in most instances and can be seen by other persons besides the Duffs. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - When Mike confronts Honey with his knowledge of her family's resemblance to the television characters he knows so well, Honey first denies their identity. Lloyd Nielson then returns from work in a disheveled state after being mugged and having his car stolen with him inside. Lloyd is a father figure resembling the stereotype from shows such as "Father Knows Best" and "Leave It To Beaver." After Mike sees the Nielsons change into black and white, Honey is forced to reveal to him that her family is indeed from the television show "Hi Honey! I'm Home," and that they have been placed in New Jersey by the Sitcom Relocation Program or SRP pending their return to the airwaves. Honey swears Mike to secrecy about this revelation because further discovery of their status would jeopardize a return to television. Honey also shows Mike a device the Nielsons can use to convert themselves from color into black and white (called a "Turnerizer"). The Nielsons usually appear in color, but when Lloyd Nielson wants to dispense a nugget of fatherly wisdom he changes the family (actually the entire screen) into black and white. Lloyd Nielson then surprises Honey by telling her that his boss is coming over for dinner unexpectedly, and he announces that he is going to take a nap. Elaine is shocked at Lloyd's treatment of his wife, and the two women argue over the proper role of a wife. Elaine grudgingly acknowledges Honey's position, and then tries to help her by providing an all-microwavable instant meal to serve Lloyd's boss. Honey's attempts to use her 1950's era kitchen to prepare this modern meal results in disaster. Mike saves the day by ordering a fast-food delivery, and he vows to help the Nielsons adapt to the modern world since, as he says, they have been the family he has "always wanted." Honey first mistakes Malcolm, the homeless man, for Lloyd's boss, but even after learning his true identity Honey insists that he stay for dinner. Lloyd's boss then appears for dinner, and instead of announcing Lloyd's expected promotion he tells the family that his plant is closing (Lloyd's boss is played by the late Gale Gordon, also known for portraying Lucille Ball's boss on her television show). 2. Episode Six In Episode Six Elaine is circulating a petition for freedom of the arts. Mike is excited since Babbs accepted his invitation to go to the high school homecoming prom, but their date is jeopardized when the Sitcom Relocation Program announces that it is considering returning the Nielsons' show to an open television slot. The Nielsons are first thrilled by the prospect of a return to television, but when Mike is asked to help them prepare for an evaluation by the SRP he realizes the loss he will feel if they leave. In his depression Mike tells Elaine about the Nielsons' true identity and their chance to return to television. Elaine cannot believe Mike's story, and she asks Honey to set him straight. Honey is shocked by Mike's leak, and Honey and Lloyd try to prevent Mike from making further disclosures. Mike tells them that they are "the best thing that ever happened to [him]," and in desperation he steals the Turnerizer. The Nielsons search frantically for the Turnerizer, and Mike returns it after a nightmare makes him realize that he can't force the Nielsons to stay. The Nielsons then decide to remain because of Mike's heartfelt need for a surrogate family, and they sabotage their opportunity to return to television by pretending to be a dysfunctional modern family during the SRP inspection. The SRP inspector, accompanied by Ann B. Davis (known for portraying Alice, the family maid on The BRADY BUNCH show), is horrified by the Nielsons' new appearance, and he awards the open television slot to reruns of the BRADY BUNCH. 3. Episode Seven In Episode Seven Elaine Duff campaigns to place condom machines in high school restrooms, and she obtains unwitting help from Honey Nielson who is initially oblivious to the entire issue (Honey first assumes that condoms are a type of candy, and she distributes them to Chuckie's scout troop). Mike provides the Nielsons with a lesson in sex education, and they then become worried since Babbs is seeing a high school boy with a reputation for high pressure dating tactics. Elaine tells Honey that she should be aware of the modern dangers faced by young people regarding sex, and Honey observes that "being a parent is so complicated these days." Babbs' ignorance of modern dating initially misleads the boy into thinking that she is sexually promiscuous, but after realizing his true intentions Babbs leaves him and is forced to walk home. At the end of the episode Honey and Lloyd move their twin beds together in apparent violation of a 1950's era television code. 4. Episode Eight In Episode Eight Elaine is circulating a petition against banning "Catcher in the Rye." Chuckie Nielson is desperate to make some friends since his scout troop is no longer popular, and he is being picked on by other children. Skunk and another boy are seeking to buy expensive new sneakers, and they ask Chuckie to join them in stealing the money they need. Ken Osmond (known for portraying Eddie Haskell on "Leave It To Beaver") makes a guest appearance as the bad influence on Chuckie who advises him to join in this venture. Chuckie joins the boys in stealing money from a neighbor's house, but Chuckie is caught when he becomes stuck while trying to crawl through a pet door. Chuckie refuses to reveal the identity of his partners in crime, and when Honey accuses Skunk of involvement Elaine becomes upset. Skunk first denies his role in the affair, but when Elaine discovers that he participated in the theft she threatens to return Skunk to his father. As the episode ends Skunk has joined Chuckie's scout troop, and both Elaine and Honey have baked brownies. Discussion I. Standard for Summary Judgment Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. Rule 56(c). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Furthermore, the facts must be viewed in the light most favorable to the non-moving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). [text omitted] Conclusion Defendants' motion for summary judgment on Plaintiffs' copyright and Lanham Act claims is granted, and on Plaintiffs' state law claims under NYGBL @@ 349-350. Plaintiffs' other state law claims are dismissed without prejudice to their assertion in an appropriate state court. This case is hereby closed. IT IS SO ORDERED. Dated: New York, New York July 13, 1995 ROBERT P. PATTERSON, JR. U.S.D.J.