Shonda Rhimes, executive producer of the hit television shows Greys Anatomy, Scandal, and How to Get Away with Murder, is one of Hollywood’s most sought after talents.  But in what is one of the most colorful New England opinions we have covered on this blog, it appears that the District of Massachusetts was not quite impressed with her ABC Television show Off the Map, and even less so with the plaintiff that alleged that the show was a rip-off of the unpublished novel, The Red Tattoo.  

The case was a copyright infringement action filed by author of The Red Tattoo, Debra Feldman, against ABC, Rhimes, and other principals behind Off the Map.  Don’t worry if the ABC show doesn’t sound familiar.  As Judge Stearns’ opinion notes, the show “aired for thirteen episodes in early 2011 to generally unappreciative reviews” and was subsequently canceled that May.  Judge Stearns himself clearly wasn’t on the edge of his seat as he “reviewed, yes, watched (albeit with diminishing anticipation) all thirteen episodes,” but ultimately he agreed with the defendants that Ms. Feldman had failed to make a plausible claim of probative similarity and dismissed the copyright case.

To demonstrate copyright infringement, a plaintiff must prove, among other things, that the defendant actually copied the source work.  Since direct evidence of copying is often hard to come by, copying can be proved by showing that (1) the defendant had access to the source work, and (2) the two works are so similar that copying can be inferred– i.e., “probative similarity.”

In analyzing the TV show against the novel, Judge Stearns noted that the Off the Map show was  “a medical procedural drama set in a clinic in a jungle region of an unidentified South American country,” and that “[e]ach episode features exotic accidents and diseases and their unorthodox treatments by a heroic band of mostly expatriate doctors working in extreme conditions.”  For example, when blood is in short supply, a man needing a blood transfusion is “given a coconut water transfusion and his life is saved.”  (We are quoting from the opinion to prove that we are not making this up.)

The Red Tattoo, on the other hand, is a novel involving time travel.  Ms. Feldman “contend[ed] that a clinic in Bali (Indonesia), a location briefly mentioned in The Red Tattoo, is the inspirational source of the South American jungle clinic in Off the Map.”  As the court pointed out, however, “the generalized concept of an underequipped tropical clinic is not copyrightable,” and the two clinics in fact differ greatly in terms of setting and medical capabilities.

Similarly, the court was unconvinced by Ms. Feldman’s attempt to correlate plot points.  For example, the fact that motor scooters, diabetes patients, and dead fiancées briefly appear in each work failed to prove copying.  Finding no probative similarity, Judge Stearns dismissed the case.

The case is Feldman v. Rhimes et al., No. 14-cv-12030-RGS, and was pending in the District of Massachusetts.