Timeless on the Bubble: Future of Series, Copyright Lawsuit Remain Uncertain

NBC’s television series Timeless is officially “on the bubble,” in more ways than one. Not only do viewers likely have to wait until May to find out whether the show will be renewed for another season, but the legal fate of the show also remains uncertain due to an ongoing copyright infringement lawsuit against Sony, NBC and the show’s creators.

Copyright infringement plaintiffs are often hard-pressed to survive the motion-to-dismiss stage of a lawsuit, but U.S. District Judge Stephen Wilson in February denied the defendants’ motion to dismiss, finding that the issue of substantial similarity is better suited for summary judgment.

Still, proving substantial similarity of  Timeless  to Spanish drama Ministerio del Tiempo (The Department of Time) will likely be a tough hurdle for Onza Entertainment to clear, although the defendants allegedly had direct access to the work, provided to them by the plaintiffs.

Elements of a Copyright Infringement Claim

To prevail in a copyright infringement claim, a plaintiff must typically prove two elements: they owned a valid copyright and actual copying of the work occurred. Because direct evidence of actual copying rarely exists, plaintiffs often resort to indirectly providing copying by showing that the defendant had access to the work and that  the degree of similarity between the two shows is substantial, and could not have happened by coincidence, independent creation or a prior common source.

In April 2015, Department of Time producer and Onza Entertainment principal  Gonzal Sargardia  took a premise of the Spanish show to an international TV conference, where Roy Ashton of the Gersh Agency took interest. Sargardia gave Ashton a DVD of the first episode of the show with the understanding that if Ashton thought the premise had potential for success in the U.S., they would work together to produce an American version of the show. Sony agreed to produce an American version and offered an 18-month contract to Onza in the summer of 2015. In August 2015, Sony announced the project would become Timeless, and cut off negotiations with Sargardia, according to the complaint.  

The Hurdle: Substantial Similarity

U.S. copyright law does not protect ideas, only someone’s expression of that idea, and for this reason these types of cases can be challenging.

“You can’t protect time travel; a story about time travel, that’s been done,” said New York City copyright attorney Leila Amineddoleh, who often works with artists, filmmakers, directors and entertainers to protect their copyrights or to defend them against such lawsuits.

According to the complaint, the total concept of Timeless is “substantially, indeed strikingly, similar to the total concept and feel of the plaintiffs’ format and original series.” Onza also maintains that a breach of implied contract occurred, since “it was understood by all parties that when the company handed over the DVD and began negotiations, it was all conditional upon Sony’s implied promise not to make use of the ideas underlying the format without a formal agreement.” 

But in its motion to dismiss, the defendants argued that “because plaintiffs broadcast their format to the world before allegedly making any contact or contract, they cannot maintain an implied in fact claim for the use of ideas after broadcast,” saying in effect that because Onza chose to “blurt out” their idea, they can’t expect payment for that idea. But in denying the motion, the judge noted that the “blurted out” defense would only work if Timeless had been created without any communication with Onza.

Still, Amineddoleh said there would need to be details that are similar even if Sony did communicate with Onza.

“Sony cannot argue that they did not have access to that material, so the Spanish company can meet the burden to prove the accessibility of the material, but it’s really that second prong, that factual inquiry, that could get them in trouble,” she said.

Copyright attorney Marc Misthal of the New York firm Gottlieb Rackman & Reisman PC agreed it likely won’t be easy for Onza to show substantial similarity.

“They [Onza] alleged enough that they were able to establish the elements of the claim,” he said. “But the crux of this case is was it the idea that was copied, or was it really the show? That’s going to depend on just how similar the two shows are.”

“It can be very hard to prove actual copying,” said Misthal, “but here we’re not looking to show actual copying. We want to show access and substantial similarity. Access seems like it might be a little bit on the easier side for a plaintiff to show.”

In the end, courts frequently decide copyright infringement cases on the “reasonable person” standard, which is not a concrete threshold and can be difficult to establish.

“There’s a fine line between someone being inspired and recognizing an inspiration versus someone copying too much and taking too much,” said Amineddoleh. “I think it’s a difficult line for someone to draw.”

Amineddoleh said the Onza may draw sympathy from a judge or a jury, but that may not matter in the end.

“It’s a shame that that’s what happened to them, so I think there still is a gamble for either side in litigating something like this. However, I do think Sony has the stronger argument.”