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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
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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. 
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A. Motion to Dismiss

We review de novo the district court’s judgment granting Defendants’ motion to dismiss. 

Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 99–100 (2d Cir. 2015). “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)). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Id. In considering a motion to dismiss, a court generally 

“must limit itself to facts stated in the complaint or in documents attached to the complaint as 

exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner Inc., 937 F.2d 

767, 773 (2d Cir. 1991). A district court “may also consider matters of which judicial notice may 

be taken under Fed. R. Evid. 201.” Id. 

Here, Plaintiffs argue that reversal is required because the district court improperly relied 

on facts it judicially noticed via a “quick internet search” to refute the allegations in the complaint. 

We disagree. Even assuming arguendo that the district court improperly took judicial notice of 

the fact “that there are numerous in-house performance coaches who are currently on Wall Street,” 

App’x at 295, we need not disturb the district court’s decision. Based on our de novo review of 

the works at issue, the district court properly concluded that Plaintiffs’ copyright infringement 

claims are deficient as a matter of law.

“To establish a claim of copyright infringement, ‘two elements must be proven: (1) 

ownership of a valid copyright, and (2) copying of constituent elements of the work that are 

original.’” Abdin v. CBS Broad. Inc., 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ’ns, Inc. 

v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). To satisfy the second of these elements, a 
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plaintiff “must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) 

the copying is illegal because a substantial similarity exists between the defendant’s work and the 

protectible elements of [the] plaintiff’s [work].” Id. (internal quotation marks and emphasis 

omitted). We have explained that courts may resolve the question of substantial similarity as a 

matter of law at the pleadings stage based on a review of the works in their entirety. Peter F. 

Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63–65 (2d Cir. 2010). 

First, the district court properly concluded that the works are not substantially similar under 

the “more discerning observer” test. The “more discerning observer” test requires us to assess 

“substantial similarity between those elements, and only those elements, that provide 

copyrightability to the allegedly infringed [work].” Abdin, 971 F.3d at 66 (internal quotation 

marks omitted). “[W]e examine the similarities in such aspects as the total concept and feel, 

theme, characters, plot, sequence, pace, and setting.” Id. (internal quotation marks omitted).

A review of these factors illustrates that Billions and Market Mind Games are not 

substantially similar. The plot of Market Mind Games, to the extent there is one, is wholly 

dissimilar from that of Billions. Likewise, the similarities that exist between Dr. Rhoades in 

Billions and the fictional version of Shull in Market Mind Games—namely their gender and 

occupation—are generalized and non-protectible. Id. at 72 (noting that “stock similarities” such 

as hair color, race, and profession “are non-protectible generalized traits that cannot support a 

plausible character infringement claim”). Bearing these and other distinctions in mind, the total 

concept and feel of Market Mind Games is quite different from that of Billions: Whereas Market 

Mind Games is an academic book that draws on fictional stories to illustrate Shull’s ideas, Billions

is an entirely fictional serial television drama that, as the district court described it, seeks to portray 

“the drama that lies in the age old trifecta of money, power, and sex,” App’x at 291. See Abdin, 
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971 F.3d at 73 “([W]here the ‘total concept and feel’ of competing works is different, we will not 

find infringement.”)

Second, the district court properly concluded that the works are not substantially similar 

under the so-called “quantitative and qualitative” approach. We have described this approach as

requiring a court to consider: (1) quantitatively, whether “the amount of the copyrighted work that 

is copied” is “more than de minimis”; and (2) qualitatively, whether the copying “concerns the 

copying of expression, rather than ideas, facts, works in the public domain, or any other nonprotectable elements.” Castle Rock Ent., Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 138 (2d Cir. 

1998) (internal quotation marks and alterations omitted).

A review of the works unveils no actionable copying, let alone copying that exceeds the de

minimis threshold. As noted above, the stock similarities between Dr. Rhoades and the fictional 

version of Shull cannot support a plausible infringement claim. Nor can the supposed similarities 

between the psychological advice that Dr. Rhoades and Shull offer. Plaintiffs, among other 

things, cannot copyright the idea that one should eat, sleep, and exercise to perform well. See 

Abdin, 971 F.3d at 67 (“[F]acts and ideas are not protected by copyright.”). And to the extent 

Plaintiffs allege that Billions copies a one-on-one counseling session that takes place in Market 

Mind Games concerning a bad trade, they are mistaken. The counseling sessions in the two 

works take place in entirely different contexts, resulting from different traumas and leading to 

different psychological revelations.

Accordingly, even assuming that the district court erred in consulting the internet, it 

properly dismissed the copyright infringement claims here on the ground that the works at issue 

are not substantially similar, dooming these claims as a matter of law.
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B. Post-Judgment Motion for Leave to Amend

We review the “denial of a postjudgment motion for leave to replead for abuse of 

discretion.” Williams v. Citigroup Inc., 659 F.3d 208, 212 (2d Cir. 2011). But we review de 

novo the denial of such a motion “on the grounds that amendment would be futile.” Jackson v. 

Abernathy, 960 F.3d 94, 97 (2d Cir. 2020). “An amendment to a pleading is futile if the proposed 

claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. 

Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002). 

Plaintiffs argue that the district court abused its discretion in denying their post-judgment 

motion for leave to amend in large part because they were not afforded an opportunity to replead. 

Again, we disagree. The district court properly denied Plaintiffs’ motion for leave to amend 

because Plaintiffs’ proposed amendments as to their remaining claims would be futile.

“In the ordinary course, the Federal Rules of Civil Procedure provide that courts ‘should 

freely give leave’ to amend a complaint ‘when justice so requires.’” Williams, 659 F.3d at 212 

(quoting Fed. R. Civ. P. 15(a)(2)). “Where, however, a party does not seek leave to file an 

amended complaint until after judgment is entered, Rule 15’s liberality must be tempered by 

considerations of finality.” Id. at 213. Thus, “[a]s a procedural matter, ‘[a] party seeking to file 

an amended complaint postjudgment must first have the judgment vacated or set aside pursuant to 

[Rules] 59(e) or 60(b).’” Id. (quoting Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 

2008)). We have held that “it is an abuse of discretion to deny a motion under Rule 59(e) . . . 

when the plaintiff was never given an opportunity to replead in the first place.” Metzler Inv. 

Gmbh v. Chipotle Mexican Grill, Inc., 970 F.3d 133, 144 (2d Cir. 2020). But even when a 

plaintiff has not had one such opportunity, a district court may properly deny her post-judgment 

motion for leave to amend if her proposed amendments would be futile. See Williams, 659 F.3d 
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at 214 (“It is well established that leave to amend need not be granted where the proposed 

amendment would be futile.” (internal quotation marks and alterations omitted)).

Here, Plaintiffs’ proposed amended complaint includes additional factual allegations 

pertaining to their claims for copyright infringement and a new claim under Section 43(a) of the 

Lanham Act for false endorsement. Plaintiffs’ amended copyright claims fail for the same 

reasons their original copyright claims failed. As highlighted above, the district court properly 

dismissed Plaintiffs’ copyright infringement claims after a careful review of the works, in their

entirety, led it to conclude they are not substantially similar as a matter of law. No amount of 

repleading can remedy this deficiency. See Gaito, 602 F.3d at 64–65 (holding that courts may 

resolve the issue of substantial similarity as a matter of law at the pleadings stage based on a 

complete review of the works at issue).

Plaintiffs’ Lanham Act claim suffers from a similar flaw. To state a claim for false 

endorsement under Section 43(a) of the Lanham Act, a plaintiff must plausibly allege: “(1) that 

the mark . . . is distinctive as to the source of the good or service at issue, and (2) that there is [a] 

likelihood of confusion between the plaintiff’s good or service and that of the defendant.” See 

Electra v. 59 Murray Enters., Inc., 987 F.3d 233, 257 (2d Cir. 2021) (internal quotation marks 

omitted). As to the second of these elements, a court may dismiss a Section 43(a) claim “as a 

matter of law where the court is satisfied that the products or marks are so dissimilar that no 

question of fact is presented.” Pirone v. MacMillan, Inc., 894 F.2d 579, 584 (2d Cir. 1990) 

(internal quotation marks omitted). We have previously explained that “the absence of 

substantial similarity leaves little basis for asserting a likelihood of confusion or palming off for 

purposes of a claim under [S]ection 43(a) of the Lanham Act.” See Warner Bros. Inc. v. Am. 

Broad. Cos., 720 F.2d 231, 246 (2d Cir. 1983) (internal quotation marks omitted). Given the 
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absence of substantial similarity here—and, indeed, given the considerable dissimilarity between 

Dr. Rhoades in Billions and the fictionalized version of Shull in Market Mind Games—Plaintiffs 

“cannot possibly show confusion as to source or sponsorship” sufficient to state a claim under 

Section 43(a) of the Lanham Act. Pirone, 894 F.2d at 585 (internal quotation marks omitted). 

Accordingly, the district court properly denied Plaintiffs’ post-judgment motion for leave 

to amend.

* * *

We have considered Plaintiffs’ remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment and order of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk