Bit Parts

Finding Tolbert failed to establish Good Bones producer High Noon had access to her proposed show, District Judge Daniel D. Domenico observed: "Tolbert has not alleged that she sent her teaser to High Noon, HGTV, or any of their agents or employees. Ms. Tolbert avers instead that she sent her teaser to twenty show producers in the home-renovation genre during the summer of 2014." Tolbert argued that High Noon had access to her work via those producers. But District Judge Domenico found: "While it is possible to establish access on an intermediary theory like the one posited by Ms. Tolbert, one leading treatise explains that it is 'seldom successful in practice.' William F. Patry, Patry on Copyright §9:29 (2021). This is because 'inserting a third party into the equation makes the likelihood of access even more remote since an additional obstacle is placed in the chain of evidence necessary to establish … that the defendant copied from the plaintiff.'" The district judge added: "Courts in the Ninth Circuit, for example, have ruled that, to prove access through an intermediary, 'the intermediary must have been either (1) a supervisor with responsibility for the defendant's project; (2) a part of the same work unit as the copier; or (3) someone who contributed creative ideas or material to the defendant's work." High Noon had moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure on the ground that Tolbert's complaint "was legally and factually frivolous from the outset, asserted to exact a settlement."

But Judge Domenico denied the motion. "[N]ot every claim that fails is frivolous, and in the Court's view, the claims here weren't frivolous," the judge explained. "No doubt this sort of they-stole-my-show claim can be abused. But while there is not enough in the record to support the inferences and conclusions necessary for Ms. Tolbert to prevail, there is enough that a reasonable attorney could press them in good faith. Without discovery, for example, it's unclear how Ms. Tolbert would have known when [High Noon's] sizzle reel for Good Bones was completed. And even so, Ms. Tolbert has a colorable argument that High Noon could have copied her teaser in the period between completion of the sizzle reel and production of the [Good Bones] pilot."