stars earn stripesA former police officer has switched from fighting crime on New York’s streets to battling Hollywood television producers in court, with a U.S District Court in Los Angeles allowing him to proceed with his litigation and denying a motion to dismiss filed by NBC Universal Media LLC and its co-defendants.

The court ruled that the Richard Dillon had a sufficient claim for copyright infringement of his television series treatment.

But his other assertions about violations of California’s Unfair Competition Law, breach of contract, and inducement of breach of contract were dismissed.

After twenty years in law enforcement, Dillon turned to consulting and serving as a TV show technical adviser. He eventually decided to step into a more creative role, developing the idea for a reality TV show, Celebrity Seals. His treatment detailed his concept of celebrity contestants competing with each other in events mimicking the training for U.S. Navy SEALs. Winning competitors would see $100,000 donated to the charities of their choice.

Dillon protected his treatment, registering it with the Writer’s Guild of America in May, 2011, and with the U.S. Copyright Officer in June, 2012. He and his co-creator, Jonathan Moss, then began shopping the project to TV producers, including David A. Hurwitz, who was pitched in a conference call and received a follow-up copy of the treatment.  Hurwitz, the litigation asserts, told Dillon and Moss that NBC executives thought Celebrity Seals was “too niche and cable for them.”   A year later, however, Dillon saw that NBC had produced Stars Earn Stripes, which he claims was “based upon and utilizes the detailed ideas and story lines Dillon and Moss had pitched as ‘Celebrity SEALs.’”

To assert a valid claim for copyright infringement, a plaintiff must show “(1) ownership of a valid copyright and (2) copying by Defendants of protectable elements of the work.”  The court’s analysis turned on the second element, where defendants argued that plaintiffs could not establish they copied their treatment due to a failure to show access to it and a lack of substantial similarity in the final program. Here, the defendants failed to persuade the court, which found that the plaintiff’s showed their adversaries had reasonable access the treatment via a business relationship between Hurwitz and NBC. The court also found sufficient similarities between the NBC show and Dillon’s treatment for him to make an infringement claim; the court noted the two shared similar themes, moods and plots, as well as each featuring a coach character with military training.

But U.S. District Judge S. James Otero sided with the defendants on Dillon’s claims under California law, finding it failed the second prong of the copyright preemption test. That’s because the contract breach that Dillon claimed was not covered by Section 106 of the Copyright Act; he conceded that he had not communicated directly with NBC nor Universal and he failed to show that either intended to cause a contract breach.

Star Earn Stripes proved to be a programming casualty before its first season and all its episodes aired, with NBC axing the show with a lame-game news release claiming the entire cast of  the military-themed reality TV show were killed in Afghanistan. And jn case you blinked and missed the program at the core of this case: