Case 1:18-cv-01196-AJN-KHP Document 50 Filed 06/29/18 Page 1 of 33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTIAN CHARLES,
Plaintiff,
v.

No. 18 Civ. 01196 (AJN) (KHP)

JERRY SEINFELD, COLUMBUS 81
PRODUCTIONS, INC., EMBASSY ROW, LLC,
COMEDIANS IN CARS, LLC, SONY PICTURES
TELEVISION INC., and NETFLIX, INC.,

ORAL ARGUMENT REQUESTED

Defendants.

MEMORANDUM OF LAW OF DEFENDANTS JERRY SEINFELD, COLUMBUS 81
PRODUCTIONS, INC., EMBASSY ROW, LLC, COMEDIANS IN CARS, LLC, SONY
PICTURES TELEVISION INC., AND NETFLIX, INC. IN SUPPORT OF THEIR
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166-0193
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
Dated: June 29, 2018

Attorneys for Defendants Jerry Seinfeld,
Columbus 81 Productions, Inc., Embassy
Row, LLC, Comedians in Cars, LLC, Sony
Pictures Television Inc., and Netflix, Inc.

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1 
ALLEGATIONS IN THE COMPLAINT ...................................................................................... 4 
I. 

Background ..............................................................................................................4 

II. 

This Action...............................................................................................................8 

LEGAL STANDARD..................................................................................................................... 9 
ARGUMENT ................................................................................................................................ 10 
I. 

II. 

THE COPYRIGHT CLAIM MUST BE DISMISSED AS
TIME-BARRED. ...................................................................................................10 
A. 

Plaintiff’s Copyright Claim Concerns Ownership, Not
Infringement. ..............................................................................................10 

B. 

Plaintiff’s Copyright Claim Has Been Time-Barred For At Least
Two-And-A-Half Years. ............................................................................11 

C. 

This Is A Textbook Case For Applying The Statute Of Limitations. ........16 

THE COPYRIGHT CLAIM MUST BE DISMISSED BECAUSE
PLAINTIFF FAILS TO ALLEGE A PROTECTABLE
COPYRIGHT INTEREST AND HIS COPYRIGHT
REGISTRATIONS ARE FRAUDULENT AND INVALID. ...............................17 
A. 

Plaintiff Fails To Allege A Protectable Copyright Interest. ......................17 

B. 

Plaintiff’s Copyright Registrations Were Fraudulently Obtained
And Are Invalid As A Matter of Law. .......................................................20 

III. 

PLAINTIFF RELEASED ALL CLAIMS RELATED TO THE
SHOW. ...................................................................................................................21 

IV. 

PLAINTIFF DOES NOT STATE A CLAIM FOR BREACH OF
IMPLIED CONTRACT, UNFAIR COMPETITION
(MISAPPROPRIATION), OR QUANTUM MERUIT. ........................................23 

V. 

PLAINTIFF DOES NOT STATE A CLAIM FOR HIS
REMAINING STATE LAW CAUSES OF ACTION...........................................25 

CONCLUSION ............................................................................................................................. 25 

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TABLE OF AUTHORITIES
Page(s)
Cases
16 Casa Duse, LLC v. Merkin,
791 F.3d 247 (2d Cir. 2015).........................................................................................16, 20, 25
Ace Arts, LLC v. Sony/ATV Music Pub., LLC,
56 F. Supp. 3d 436 (S.D.N.Y. 2014)............................................................................10, 13, 25
Allied Artists Int’l, Inc. v. Rooks,
2010 WL 11507999 (C.D. Cal. Mar. 1, 2010) .........................................................................13
Estate of Andrea Brannon v. City of New York,
2016 WL 1047078 (S.D.N.Y. Mar. 10, 2016) .........................................................................23
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................................9
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................9
Biro v. Conde Nast,
963 F. Supp. 2d 255 (S.D.N.Y. 2013)......................................................................................13
Briarpatch Ltd., L.P v. Phoenix Pictures, Inc.,
373 F.3d 296 (2d Cir. 2004).....................................................................................................24
Broughel v. Battery Conservancy,
2010 WL 1028171 (S.D.N.Y. Mar. 16, 2010) .........................................................................24
Castorina v. Spike Cable Networks, Inc.,
784 F. Supp. 2d 107 (E.D.N.Y. 2011) .....................................................................................19
Cohen v. Avanade, Inc.,
874 F. Supp. 2d 315 (S.D.N.Y. 2012)......................................................................................25
Dewan v. Blue Man Grp. Ltd. P’ship,
73 F. Supp. 2d 382 (S.D.N.Y. 1999)..................................................................................14, 16
Druyan v. Jagger,
508 F. Supp. 2d 228 (S.D.N.Y. 2007)........................................................................................7
eBC, Inc. v. Map Techs., LLC,
2011 WL 12847702 (S.D.N.Y. May 17, 2011) .........................................................................7

ii

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TABLE OF AUTHORITIES
(continued)
Page(s)
Cases
Edwards v. Cinelou Films, LLC, 2016 WL 9686986 (C.D. Cal. June 22, 2016),
aff’d sub nom.,
696 F. App’x 270 (9th Cir. 2017) ............................................................................................19
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) ...........................................................................................................17, 18
Frederick v. Capital One Bank (USA), N.A.,
2015 WL 5521769 (S.D.N.Y. Sept. 17, 2015) .........................................................................25
Grecco v. Associated Press,
2017 WL 2913501 (S.D.N.Y. July 7, 2017) ............................................................................15
Hostcentric Techs., Inc. v. Republic Thunderbolt, LLC,
2005 WL 1377853 (S.D.N.Y. June 9, 2005) ...........................................................................23
IDT Corp. v. Morgan Stanley Dean Witter & Co.,
12 N.Y.3d 132 (2009) ..............................................................................................................25
Knitwaves, Inc. v. Lollytogs Ltd. (Inc.),
71 F.3d 996 (2d Cir. 1995).......................................................................................................20
Kwan v. Schlein,
634 F.3d 224 (2d Cir. 2011).....................................................................................2, 10, 11, 13
Lapine v. Seinfeld,
31 Misc. 3d 736 (Sup. Ct. N.Y. Cty. 2011) .......................................................................24, 25
Ledesma v. Del Records, Inc.,
2015 WL 8023002 (C.D. Cal. Dec. 4, 2015) ...........................................................................13
Mahan v. Roc Nation, LLC,
634 F. App’x 329 (2d Cir. 2016) .............................................................................................14
Marraccini v. Bertelsmann Music Grp. Inc.,
221 A.D.2d 95 (3d Dep’t 1996) ...............................................................................................25
Matusovsky v. Merrill Lynch,
186 F. Supp. 2d 397 (S.D.N.Y. 2002)..................................................................................9, 23
McCarthy v. Stollman,
2010 WL 11586609 (S.D.N.Y. Feb. 23, 2010) ........................................................................21

iii

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TABLE OF AUTHORITIES
(continued)
Page(s)
Cases
McDonald v. West,
138 F. Supp. 3d 448 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir. 2016) ..............9, 17, 18
Minder Music Ltd. v. Mellow Smoke Music Co.,
1999 WL 820575 (S.D.N.Y. Oct. 14, 1999) ............................................................................11
Mizioznikov v. Forte,
2017 WL 5642383 (S.D. Fla. Mar. 27, 2017) ..........................................................................21
Morefun Co. v. Mario Badescu Skin Care Inc.,
588 F. App’x 54 (2d Cir. 2014) .........................................................................................22, 23
Netzer v. Continuity Graphic Assocs., Inc.,
963 F. Supp. 1308 (S.D.N.Y. 1997).............................................................2, 11, 15, 16, 17, 25
Ortiz v. Guitian Bros. Music Inc.,
2008 WL 4449314 (S.D.N.Y. Sept. 29, 2008) .............................................................10, 13, 14
Parks v. ABC, Inc.,
341 F. App’x 737 (2d Cir. 2009) .......................................................................................12, 15
Pratt Plumbing & Heating, Inc. v. Mastropole,
414 N.Y.S.2d 783 (3d Dep’t 1979) ..........................................................................................23
Sampson v. MediSys Health Network, Inc.,
2012 WL 3027838 (E.D.N.Y. July 24, 2012) ..........................................................................25
Simmons v. Stanberry,
2012 WL 1004857 (E.D.N.Y. Mar. 23, 2012) ...................................................................12, 16
Simmons v. Stanberry,
810 F.3d 114 (2d Cir. 2016)...................................................................................11, 12, 13, 15
Smith v. New Line Cinema,
2004 WL 2049232 (S.D.N.Y. Sept. 13, 2004) .........................................................................23
Telerate Sys., Inc. v. Caro,
689 F. Supp. 221 (S.D.N.Y. 1988)...........................................................................................21
Tri–State Emp’t Servs., Inc. v. Mountbatten Sur. Co.,
295 F.3d 256 (2d Cir. 2002).....................................................................................................22

iv

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TABLE OF AUTHORITIES
(continued)
Page(s)
Cases
TufAmerica, Inc. v. Diamond,
968 F. Supp. 2d 588 (S.D.N.Y. 2013)............................................................................1, 14, 15
We Shall Overcome Found. v. Richmond Org., Inc. (TRO Inc.),
221 F. Supp. 3d 396 (S.D.N.Y. 2016)..........................................................................20, 21, 23
Weber v. Geffen Records, Inc.,
63 F. Supp. 2d 458 (S.D.N.Y. 1999)........................................................................................14
Williams v. A & E Television Networks,
122 F. Supp. 3d 157 (S.D.N.Y. 2015)............................................................................3, 18, 19
Wnet v. Aereo, Inc.,
871 F. Supp. 2d 281 (S.D.N.Y. 2012)......................................................................................24
Zikakis v. Staubach Retail Servs., Inc.,
2005 WL 2347852 (S.D.N.Y. Sept. 26, 2005) .........................................................................24
Zuill v. Shanahan,
80 F.3d 1366 (9th Cir. 1996) ...................................................................................................17
Statutes
17 U.S.C. § 410(c) .........................................................................................................................21
17 U.S.C. § 505 ................................................................................................................................9
17 U.S.C. § 507(b) .........................................................................................................................11
Other Authorities
Comedians in Cars Getting Coffee: You Don’t Want to Offend a Cannibal,
INTERNET MOVIE DATABASE, https://www.imdb.com/title/tt2368432 (last
visited June 29, 2018) ..............................................................................................................13
Katla McGlynn, Jerry Seinfeld Opens Up About ‘Comedians In Cars Getting
Coffee’: ‘This Is Just What We Like To Do’ (EXCLUSIVE), HUFFINGTON POST,
Aug. 23, 2012,
https://www.huffingtonpost.com/2012/08/23/jerry-seinfeld-comedians-in-cars
-getting-coffee_n_1825716.html. ............................................................................................16

v

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TABLE OF AUTHORITIES
(continued)
Page(s)
Other Authorities
Soraya Roberts, Jerry Seinfeld’s “Comedians in Cars” Web Series Ruffles U.K.
Feathers With Similarity to British “Carpool,” DAILY BEAST, Aug. 2, 2012,
https://www.thedailybeast.com/jerry-seinfelds-comedians-in-cars-web-series-r
uffles-uk-feathers-with-similarity-to-british-carpool . .............................................................19
Rules
Fed. R. Civ. P. 9(b) ........................................................................................................................25
Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 9
N.Y. C.P.L.R. 3211(a)(5)...............................................................................................................22

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Defendants Jerry Seinfeld, Columbus 81 Productions, Inc., Embassy Row, LLC,
Comedians in Cars, LLC, Sony Pictures Television Inc. (“SPT”), and Netflix, Inc. (collectively,
“Defendants”) respectfully submit this memorandum of law in support of their motion to dismiss
the First Amended Complaint (“FAC”)1 filed by Plaintiff Christian Charles for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
PRELIMINARY STATEMENT
This lawsuit is an opportunistic and frivolous attempt to capitalize on the success of
comedian Jerry Seinfeld’s award-winning and popular talk show, Comedians in Cars Getting
Coffee (the “Show”).2 On December 27, 2017—five-and-a-half years after the Show
premiered—Plaintiff came out of the woodwork and sent an email to Mr. Seinfeld, claiming for the
first time to be the true creator of the Show and threatening to sue unless he received a share of the
profits. Plaintiff followed with a pro se lawsuit on February 9, 2018. Defendants’ motion to
dismiss Plaintiff’s Complaint (“Compl.”)3 painstakingly detailed the numerous grounds
mandating dismissal of Plaintiff’s meritless and time-barred copyright and state law claims. See
Dkt. No. 22. In response, Plaintiff found a lawyer willing to file an Amended Complaint on May
25, 2018, corrected on June 22, Dkt. No. 46, that repackages the original allegations and adds new
binding admissions that provide additional and distinct grounds for dismissal. Put simply,
Plaintiff “plead[s] himself out of court by averring facts which, if true, would foreclose the
exercise of [this Court’s] jurisdiction.” TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 600
(S.D.N.Y. 2013) (Nathan, J.) (citation omitted). The FAC is dead on arrival.
1

2

3

Attached as Exhibit A to the Declaration of Orin Snyder, executed on June 29, 2018 (“Snyder
Declaration”). All references to Exhibits (“Ex.”) herein shall be to Exhibits to the Snyder
Declaration, unless otherwise stated.
Columbus 81 Productions, Inc., owned by Mr. Seinfeld, worked with Embassy Row, LLC, a
subsidiary of Sony Pictures Entertainment Inc., to produce the Show. Comedians in Cars,
LLC, an entity controlled by Mr. Seinfeld, owns the copyright for the Show.
Attached as Exhibit B to the Snyder Declaration.
1

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Citing his limited role directing the Show’s pilot episode in October 2011, Plaintiff alleges
that he—not Mr. Seinfeld—is the “sole owner” of the Show’s copyrights. FAC ¶¶ 2, 33, 98. In
support of this folly, Plaintiff manufactures a host of meritless claims based on conclusory and
inflammatory accusations. More fundamentally, the copyright claims fail as a matter of law for at
least three distinct reasons: they (1) are time-barred, (2) fail to allege a protectable copyright
interest, and (3) were released by Plaintiff in April 2012.
Statute of Limitations. Plaintiff’s claim of copyright ownership is time-barred under the
Copyright Act’s three-year statute of limitations. Plaintiff filed suit more than five-and-a-half
years after the Show was first publicly released on July 19, 2012. And Plaintiff admits that on at
least two occasions before the Show’s public launch, Mr. Seinfeld expressly rejected Plaintiff’s
demands for an ownership interest. See FAC ¶¶ 67, 70. Even accepting the FAC’s allegations as
true, “there is no question that [Plaintiff] was aware of the dispute regarding [his] rights to [the
Show] by [July 19, 2012], when the first [episode] was published, and therefore, [his] ownership
claim accrued at that time.” Kwan v. Schlein, 634 F.3d 224, 229 (2d Cir. 2011). This belated
lawsuit underscores the importance of enforcing the Copyright Act’s statute of limitations, as SPT,
Netflix, and other commercial actors involved in the Show’s distribution relied upon the certainty
of Mr. Seinfeld’s copyright ownership when deciding to invest substantial resources into the
Show. “[C]ertainty and repose are essential to the functioning of the copyright market.” Netzer v.
Continuity Graphic Assocs., Inc., 963 F. Supp. 1308, 1318 (S.D.N.Y. 1997).
No Protectable Copyright Interest. The FAC fails to state an infringement claim
because Plaintiff does not—and cannot—allege a protectable copyright interest. As a matter of
law, Plaintiff’s alleged idea of creating a show based on comedians driving in a car to get coffee “is
not subject to copyright protection because it consists of nothing but ‘common stock ideas’ and

2

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unoriginal scènes à faire that do not rise to the level of original protectable expression.” Williams
v. A & E Television Networks, 122 F. Supp. 3d 157, 163 (S.D.N.Y. 2015).
Plaintiff Released All Claims Related to the Show. The FAC pleads itself out of Court
by expressly incorporating by reference and quoting from an April 2012 email exchange, FAC ¶¶
74–76; Ex. C, in which Plaintiff “fully release[d] any and all” claims arising from his work on the
Show in exchange for a lump sum payment of $107,734.41. Ex. C at 1 (emphasis added). Plaintiff
admits that Mr. Seinfeld agreed to this release and “sent payment in the stated amount to
[Plaintiff].” FAC ¶ 76. The existence of that general release absolutely bars this lawsuit, which
could not have been brought in good faith given this unambiguous document.
Preemption. Plaintiff’s tag-along state law claims fare no better. They are preempted by
his deficient copyright claim, and even if they are not preempted (they are), the state law claims for
misappropriation and implied contract also fail because the FAC admits that the Show’s concept is
not novel, but is simply a variation on a preexisting theme. See FAC ¶¶ 19, 20, 25. Plaintiff also
fails to allege any facts to plausibly state a claim for relief for the remaining state law claims.
Unclean Hands. Finally, Plaintiff does not come to this Court with clean hands. In
addition to lying in the weeds for nearly six years before launching this baseless lawsuit, Plaintiff
defrauded the U.S. Copyright Office to bolster his manufactured case. On September 18, 2016, ten
days after Mr. Seinfeld obtained a copyright registration for the first episode of Comedians in Cars
Getting Coffee, Plaintiff fraudulently obtained his own copyright registration for the Show by
listing himself as the sole author of “COMEDIANS IN CARS GOING FOR COFFEE.” By
tweaking the Show’s title (“going for” as opposed to “getting”), Plaintiff deliberately misled the
Copyright Office into registering a bogus copyright that directly conflicted with the legitimate one
Mr. Seinfeld obtained ten days earlier. Even worse, on May 8, 2018, Plaintiff—with the assistance

3

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of his new counsel—filed two facially untimely, invalid, and false expedited copyright registration
applications for the Show’s purported “Script” and “Pilot.” FAC n.2–3.
For these reasons and those discussed below, this case has no foundation in fact or law.
This Court should dismiss the FAC in its entirety and with prejudice, and award attorney’s fees.
ALLEGATIONS IN THE COMPLAINT
I.

Background4
Recognized as one of the best stand-up comedians of all time, Jerry Seinfeld is also an

award-winning actor, writer, producer, and director. Mr. Seinfeld is perhaps best known for his
starring role in Seinfeld, the famous television sitcom he created and wrote with Larry David. Mr.
Seinfeld conceived of the concept for Comedians in Cars Getting Coffee in July 2000, during a
cross-country road trip he took in a 1967 Volkswagen Beetle with a fellow comedian, Barry
Marder. Eleven years later, Mr. Seinfeld hired Plaintiff to direct the Show’s pilot episode, which
also featured Mr. Seinfeld and Mr. Marder driving in a small car.
Plaintiff alleges that “[i]n September of 2000, as part of the production of [the
documentary] Comedian, [Plaintiff] filmed [Mr. Seinfeld and his] friend Barry Marder’s [] return
to New York City from a cross-country drive . . . in Seinfeld’s newly-purchased vintage
Volkswagen Beetle.” FAC ¶ 19. According to Plaintiff’s version of events, “Seinfeld expressed
great interest in the footage and inquired to Charles how it might work in the context of Comedian,
to which Charles suggested filming two friends driving and talking in a car as a unique television
show.” Id. ¶ 19. Allegedly, “[f]urther to Charles’ and Seinfeld’s discussion of pursuing the
television show suggested by Charles, on November 13, 2001, Charles created the television show
treatment for a project entitled ‘67 Bug, with an alternative title Two Stupid Guys In A Stupid Car
4

While Defendants must address the allegations as pled for the purposes of this motion, to be
clear, Plaintiff’s material allegations concerning the development and copyright ownership of
the Show are false and wholly without merit.
4

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Driving To A Stupid Town (the ‘Two Stupid Guys Treatment’).” Id. ¶ 20. Plaintiff allegedly
pitched this treatment to Mr. Seinfeld in 2002, who “rejected” it. Id. ¶ 21.
Nine years later, Plaintiff alleges that he met Mr. Seinfeld at a diner on July 30, 2011,
where “[Mr.] Seinfeld suggested to Charles that a show about comedians driving in a car to a
coffee place and just ‘chatting’ could work, to which Charles immediately pointed out that his
suggestion was actually Charles’ Two Stupid Guys Treatment that Charles had pitched to Seinfeld
in 2002. Charles and Seinfeld agreed to develop further Charles’ Two Stupid Guys Treatment,
with Charles developing, directing, and producing the project.” Id. ¶ 25. Plaintiff alleges that “[i]n
August of 2011, [he] began creating his Comedians in Cars Going for Coffee treatment (the
‘Treatment’)” and “[o]n September 22, 2011, at Seinfeld’s office, [he] shared the Treatment with
Seinfeld” and that Mr. Seinfeld “enthusiastically discussed moving forward.” Id. ¶¶ 26, 31.
Plaintiff alleges he “further developed the Treatment, as well as a synopsis, camera shot list
with descriptions and visual camera angles, script (collectively, the ‘Script’) . . . tone direction, and
music direction. He and his company then pre-produced, planned, hired crew and executed a test
shoot of the Treatment (the ‘Pilot’) on October 6, 2011, using Barry Marder as Seinfeld’s guest.”
Id. ¶ 33. Plaintiff alleges he and his production company, mouseROAR LLC, “proposed to
Seinfeld a complete marketing and distribution strategy for which, together, they would release the
Pilot and future Comedians in Cars Getting Coffee episodes for free on a custom-made website
(the ‘Project’).” Id. ¶ 46. On January 24, 2012, Plaintiff alleges he and Mr. Seinfeld “presented
the Pilot to Embassy Row,” which agreed to produce the Show. Id. ¶ 60.
After this presentation, Plaintiff began demanding an ownership interest in the Show.
Plaintiff admits he “employed his [representatives] to negotiate his terms with Embassy Row.” Id.
¶ 65. Plaintiff admits he requested “compensation and backend involvement with the Project” and

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that this request was relayed to Seinfeld between “January 31 through February 5, 2012.” Id. ¶ 66.
“Upon hearing of [Plaintiff’s] request” for backend compensation, Plaintiff admits that on at least
two occasions—before the series entered production—Mr. Seinfeld expressly repudiated
Plaintiff’s attempts to claim an ownership interest. In two telephone calls, Plaintiff admits that Mr.
Seinfeld directly communicated that Plaintiff would not have “more than a ‘work-for-hire’
directing role,” “should expect to be compensated through his directing fee,” and would not
receive “backend compensation.” See FAC ¶¶ 67, 70.
Plaintiff alleges that “Seinfeld’s closest business partners and confidants assured Charles
that he and mouseROAR would remain involved in the Project” and that “‘it would all blow over,’
and ‘not to worry.’” FAC ¶ 71. Plaintiff also alleges that “[i]n June of 2014, Charles again
reached out to Seinfeld to address their differences and requested they maintain contact. Seinfeld
agreed to stay in touch but failed to follow through.” FAC ¶ 83. Plaintiff never alleges (because he
cannot) that Mr. Seinfeld reconsidered whether Plaintiff deserved an ownership interest, or that his
June 2014 conversation with Mr. Seinfeld even broached the subject of the Show.
Just over two months after Mr. Seinfeld repudiated Plaintiff’s request for “backend
compensation” and refused to further engage with Plaintiff on the Project, the FAC alleges that
“[b]etween April 11 and 12, 2012, [mouseROAR Co-Founder Anne] Estonilo reached out to [Mr.
Seinfeld’s Columbus 81 business associate, Carolyn] Leibling [sic].” FAC ¶ 74. Allegedly,
Estonilo reached out to Liebling because she “needed to recoup the production expenses for the
production preparation and services mouseROAR conducted for several episodes of the Project.”
Id. “Leibling [sic] sent Estonilo an email that Seinfeld agreed to pay $107,734 for production
preparation from October 2011 through January 2012” and that “Leibling [sic] sent payment in the
stated amount to mouseROAR; no legal paperwork accompanied the transaction.” Id. ¶¶ 75, 76.

6

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A review of the complete April 2012 email chain—which Plaintiff conceals from the Court
but which is incorporated by reference into the FAC—reveals that those emails mark the end of
Plaintiff’s alleged role in the Show and bar his claims here.5 On April 3, 2012, Estonilo emailed
Liebling that she has “been left to close the account” on the “COMEDIANS IN CARS Project” in
lieu of “having outside representation handle this issue.” Ex. C at 1. Estonilo confirmed she
surrendered “all production learnings and process to the Embassy Row producers” and sought to
recoup “costs outstanding from mouseROAR’s work on the project which spanned over five
months from September 2011 to January 2012.” Id. To justify these costs, Estonilo then writes,
“[t]o provide background on our involvement, Jerry called Christian in September to work on the
CCC concept.” Id. at 2 (emphasis added). This is a contemporaneous admission that Mr. Seinfeld,
not Plaintiff, initiated work on the Show. Estonilo then wrote, “[i]n lieu of the backend discussed
in December and the opportunity to direct additional episodes, Christian’s non-shoot day rate
against well over 40 full days committed to the project, brings the lost income to over $100,000. .
. . Unfortunately at this stage, I must work to recoup the costs that are outstanding to mouseROAR
and Christian.” Id. (emphasis added). This confirms that Plaintiff expressly withdrew his request
for “backend” compensation and “the opportunity to direct additional episodes”—thus ceasing his
future involvement in the Show—in exchange for a lump sum for expenses and his directing fees.

5

“In deciding a motion to dismiss, this Court may consider the full text of documents that are
quoted in the complaint or documents that the plaintiff either possessed or knew about and
relied upon in bringing the suit.” Druyan v. Jagger, 508 F. Supp. 2d 228, 235–36 (S.D.N.Y.
2007); accord eBC, Inc. v. Map Techs., LLC, 2011 WL 12847702, at *3 (S.D.N.Y. May 17,
2011) (“Such emails are properly considered because Plaintiff relied upon them in drafting its
Amended Complaint.”). Plaintiff indisputably “either possessed or knew about and relied
upon in bringing the suit” the entire April 2012 email chain, attached as Exhibit C to the
Snyder Declaration, which is incorporated by reference and quoted in FAC ¶¶ 74–76; compare
FAC ¶ 74 (“recoup the production expenses”), with Ex. C at 2 (“recoup the costs”).
7

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On April 4, 2012, Liebling requested that Estonilo “detail all the expenses so that
everything is perfectly clear on paper.” Id. at 1. On April 11, 2012, Estonilo replied to Liebling,
“Per your request, I’m forwarding the internal and confidential Profit and Loss report,” which
included Plaintiff’s “salaried rate of $1448.88 per day against 44.75 days reported on his timecard
for the period worked.” Id. This confirmed that Plaintiff was exclusively compensated as a
“salaried” director. Most significantly, Estonilo proposed the following release: “The company
has agreed to fully release any and all additional fees, damages, obligations etc. if the total of
$107,734.41 for the negative costs is received (net 15).” Id. (emphasis added). Instead of
challenging these bloated costs, “[Mr.] Seinfeld agreed” to the terms of the release proposed by
Plaintiff’s representative and “Leibling [sic] sent payment in the stated amount to [Plaintiff].”
FAC ¶ 76. In closing, Estonilo wrote, “I’m sure you can understand why I would like to handle
this quickly and move forward. Christian and I wish the best for this project and everyone
involved.” Ex. C at 1. This exchange is dispositive. It belies Plaintiff’s baseless claim that he
“maintained the reasonable and good faith belief that . . . Seinfeld would still bring [him] in on the
Project.” FAC ¶ 82.
Three months after Mr. Seinfeld and Plaintiff formally ended their relationship, the Show
premiered on July 19, 2012 to widespread critical acclaim and quickly became a hit. Viewers have
streamed episodes of the Show over 100 million times and it received Emmy Award nominations
in 2013, 2014, and 2016. In January 2017, Mr. Seinfeld signed a deal to move the Show from
Crackle, SPT’s online streaming service, to Netflix. See FAC ¶¶ 91, 92.
II.

This Action
Over five-and-a-half years after Plaintiff formally ended his involvement in the Show and

expressly released any future claims for compensation (and in the wake of media reports about the
Netflix deal), Plaintiff emailed Mr. Seinfeld on December 27, 2017, claiming to be the creator of
8

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the Show, demanding a share of the Show’s profits, and threatening to sue if Mr. Seinfeld did not
agree to “confidential mediation.” Mr. Seinfeld’s counsel responded in an email to Plaintiff on
January 10, 2018, incorporated by reference and quoted in FAC ¶ 94, explaining that Plaintiff’s
ownership claims were meritless and reminding him that he “releas[ed] all claims of future
compensation.” Ex. D. In two subsequent letters, Plaintiff again threatened to sue Mr. Seinfeld
unless he agreed to a monetary settlement. After Mr. Seinfeld chose not to respond, Plaintiff (then
pro se) filed this lawsuit on February 9, 2018.6 Defendants moved to dismiss the Complaint on
April 4. The next day, the Court issued an Order notifying Plaintiff of his right “to use the
amendment process to cure any defects that have been made apparent by the Defendants’
briefing.” Dkt. No. 31 at 1. Plaintiff retained counsel shortly thereafter and filed the FAC.7
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), 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)).
The Court may consider “documents attached as exhibits, incorporated by reference, or that are
‘integral’ to the complaint.” McDonald v. West, 138 F. Supp. 3d 448, 453 (S.D.N.Y. 2015)
(Nathan, J.) (citation omitted), aff’d, 669 F. App’x 59 (2d Cir. 2016). “If a plaintiff’s allegations
are contradicted by such a document, those allegations are insufficient to defeat a motion to
dismiss.” Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002). “[C]ertain
documents outside the complaint, including judicially noticeable documents such as federal
copyright registrations, may be considered on a motion to dismiss for the limited purpose of
6

7

On March 1, 2018, given Plaintiff’s pro se status, Defendants notified Plaintiff via email and
letter of the consequences of asserting “objectively unreasonable” claims and explained that
the Court has the power to award attorney’s fees and costs under 17 U.S.C. § 505.
On June 28, 2018, Plaintiff’s counsel moved for leave of Court to withdraw as attorneys of
record for Plaintiff, citing a purported conflict of interest. Dkt. No. 47.
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‘determin[ing] what the documents state[ ].’” Ace Arts, LLC v. Sony/ATV Music Pub., LLC, 56 F.
Supp. 3d 436, 441 (S.D.N.Y. 2014) (Nathan, J.) (citations omitted).
ARGUMENT
I.

THE COPYRIGHT CLAIM MUST BE DISMISSED AS TIME-BARRED.
A.

Plaintiff’s Copyright Claim Concerns Ownership, Not Infringement.

Plaintiff’s copyright claim is absolutely time-barred under the Copyright Act’s statute of
limitations and must be dismissed as a matter of law. The primary copyright dispute here concerns
the ownership of the Show, not the infringement of Plaintiff’s alleged copyright. “To maintain an
action for infringement, a plaintiff must establish ‘(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are original.’ In many infringement cases, the
first element (ownership) is not in dispute.” Kwan, 634 F.3d at 229 (citation omitted). Here, as in
Kwan, “the dispute . . . does not involve the nature, extent or scope, of copying, and therefore,
ownership forms the backbone of the ‘infringement’ claim at issue here.” Id. Defendants do not
concede that Plaintiff owns a valid copyright for any aspect of the Show. And “[w]here, as here, a
plaintiff’s copyright ownership is not conceded (and, in fact, the defendant holds a prior copyright
registration certificate for the disputed work), copyright ownership, and not infringement, is the
gravamen of the plaintiff’s claim to which the statute of limitations is applied.” Ortiz v. Guitian
Bros. Music Inc., 2008 WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008). “‘[I]nfringement’ claims . .
. are time-barred as a matter of law where, as here, the underlying ownership claim is time-barred.”
Kwan, 634 F.3d at 229.
In the original Complaint, Plaintiff’s claims of being “the true creator-author behind the
series,” Compl. ¶ 36, are the very allegations that make this case a dispute over ownership. See
Ortiz, 2008 WL 4449314, at *3 (“Ortiz places ownership of the copyright squarely at issue when
he alleges . . . that he ‘is the sole owner of the copyrights.’”) (emphasis added). In response to
10

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Defendants’ original motion to dismiss, Plaintiff frivolously contorts the FAC to make the
head-scratching claim that there are two distinct Comedians in Cars Getting Coffee shows to try
and recast the claim as one for an ongoing infringement. See, e.g., FAC ¶ 77 (“[Defendants]
continued to use without authorization Plaintiff’s Comedians in Cars Getting Coffee and the
Project for their own show also titled Comedians in Cars Getting Coffee (the ‘Infringing
Show’).”) (emphasis added). Courts routinely dismiss this well-worn tactic—which is a tacit
admission by Plaintiff that his claim is time-barred—to evade the statute of limitations. See, e.g.,
Simmons v. Stanberry, 810 F.3d 114, 116 (2d Cir. 2016) (“[T]he plaintiff could not resuscitate the
untimely claim by relying on claims against the defendants’ continuing course of infringing
publication.”); Minder Music Ltd. v. Mellow Smoke Music Co., 1999 WL 820575, at *2 (S.D.N.Y.
Oct. 14, 1999) (“[T]he statute of limitations cannot be defeated by portraying an action as one for
infringement when copyright ownership rights are the true matter at issue.”). Further, the
allegation that there are two distinct shows is flatly contradicted by the FAC itself. See, e.g., FAC
¶ 46 (defining the “Project” as the release of “the Pilot and future Comedians in Cars Getting
Coffee episodes”); ¶ 93 (threatening to file this lawsuit to “resolve the outstanding issue of
Charles’ involvement with the Project”). Plaintiff’s claims are therefore “rooted in [his] contested
assertion of an ownership interest in the copyright” of the Show. Simmons, 810 F.3d at 116.
B.

Plaintiff’s Copyright Claim Has Been Time-Barred For At Least
Two-And-A-Half Years.

Claims under the Copyright Act must be brought “within three years after the claim has
accrued.” 17 U.S.C. § 507(b). “An ownership claim accrues only once, when ‘a reasonably
diligent plaintiff would have been put on inquiry as to the existence of a right.’” Kwan, 634 F.3d at
228 (citation omitted). “[A]ny number of events can trigger the accrual of an ownership claim,
including ‘[a]n express assertion of sole authorship or ownership.’” Id. (quoting Netzer, 963 F.

11

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Supp. at 1315). “Kwan controls this case. As in Kwan, more than three years prior to [Plaintiff’s]
filing of his suit, [Mr. Seinfeld] had made clear to him that he rejected [Plaintiff’s] assertion of an
interest in the copyright and had gone on to exploit the copyrighted work in a manner of which
[Plaintiff] was on notice. [Plaintiff’s] assertion of his claim of a copyright interest was therefore
time-barred.” Simmons, 810 F.3d at 116. The Complaint and FAC provide at least three separate
and distinct grounds to establish that the copyright ownership claim accrued “well before three
years prior to filing [his] complaint.” Parks v. ABC, Inc., 341 F. App’x 737, 738 (2d Cir. 2009).
(1) Pre-Production Repudiation. “Upon hearing of [Plaintiff’s] request” for “backend
compensation,” Plaintiff admits that, on two telephone calls, Mr. Seinfeld directly communicated
his clear and unequivocal repudiation of Plaintiff’s ownership interest: that Plaintiff would not
have “more than a ‘work-for-hire’ directing role,” “should expect to be compensated through his
directing fee,” and would not receive “backend compensation.” FAC ¶¶ 67, 70. Plaintiff admits
these telephone calls occurred in January or February 2012, id. ¶ 66, six years prior to filing this
action. Significantly, Plaintiff also admits Mr. Seinfeld ceased communication “[a]fter this second
phone call,” id. ¶ 71, triggering the statute of limitations. See Simmons v. Stanberry, 2012 WL
1004857, at *4 (E.D.N.Y. Mar. 23, 2012) (“Plaintiff ‘steadfastly asserted that he retained
ownership’ but ultimately, [Defendant] ceased all communications with Plaintiff. These events
were sufficient to place Plaintiff on notice that ownership was in dispute and thus, to begin accrual
of his claim.”), aff’d, 810 F.3d 114 (2d Cir. 2016). Plaintiff never alleges (because he cannot) that
Mr. Seinfeld ever gave Plaintiff even the slightest impression that he would reconsider his position
on Plaintiff’s involvement in the Show.8

8

This includes the descriptions of Mr. Seinfeld’s alleged June 2014 conversation with Plaintiff,
or June 2016 conversation with Simon Smith. FAC ¶¶ 83, 84. The April 2012 emails also
unambiguously reveal that Plaintiff never expected future involvement in the Show. Ex. C.
12

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(2) Public Release of the Show and Failure to Credit or Compensate Plaintiff as a
Creator. Plaintiff’s copyright ownership claim accrued after Defendants’ public distribution of
the Show on July 19, 20129 without crediting Plaintiff as a creator. Compl. ¶ 36; FAC ¶ 90.
Moreover, if the Court were to assume as true Plaintiff’s assertion that he “is the sole owner of the
copyrights at issue,” which includes the “Pilot,” FAC ¶¶ 2, 43, there can be no clearer repudiation
of Plaintiff’s copyright ownership when “Defendants without authorization copied . . . the entire
Pilot by streaming it to viewers as Season One, Episode Seven of the Infringing Show.” Id. ¶ 78.
As Plaintiff admits, the Pilot was publicly released as the seventh episode of the first season of the
Show, which first aired on September 6, 2012.10 Defendants’ public release of the Pilot, “without
[Plaintiff’s] authorization,” FAC ¶ 78, created sufficient notice to trigger the statute of limitations.
See, e.g., Simmons, 810 F.3d at 115 (“Despite Simmons’s evident awareness of Stanberry’s
repudiation . . . and of the[] release of the allegedly infringing song, Simmons did not file suit until
more than three years after the song had been released.”); Kwan, 634 F.3d at 229 (“[T]here is no
question that Kwan was aware of the dispute regarding her rights to [the book] by January 1999,
when the first edition was published.”); Ortiz, 2008 WL 4449314, at *3 (“Public distribution of the

9

10

Defendants request that the Court judicially notices that the publication date of the Show’s first
episode is July 19, 2012, which is the “Date of 1st Publication” that appears on the certificate
of copyright registration for the first episode of the series, “Comedians In Cars Getting Coffee:
Larry David: Larry Eats A Pancake – Episode #1001.” Ex. E. See Ledesma v. Del Records,
Inc., 2015 WL 8023002, at *4 (C.D. Cal. Dec. 4, 2015) (“The Court judicially notices the fact
that the publication date of ‘Solo Soy Yo’ is September 30, 2014, based on the
government-issued copyright certificate.”); Ace Arts, LLC, 56 F. Supp. 3d at 441.
Defendants request that the Court judicially notices that “Season One, Episode Seven of
[Comedians in Cars Getting Coffee],” incorporated by reference in FAC ¶ 78, was publicly
released on September 6, 2012. See Comedians in Cars Getting Coffee: You Don’t Want to
Offend a Cannibal, INTERNET MOVIE DATABASE, https://www.imdb.com/title/tt2368432 (last
visited June 29, 2018) (noting the “Release Date” is “6 September 2012”); see also Allied
Artists Int’l, Inc. v. Rooks, 2010 WL 11507999, at *7 n.5 (C.D. Cal. Mar. 1, 2010) (taking
judicial notice of Internet Movie Database website content); cf. Biro v. Conde Nast, 963 F.
Supp. 2d 255, 269 (S.D.N.Y. 2013) (taking judicial notice of publication dates on a website).
13

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work at issue . . . has been held to create sufficient notice to begin the running of the statute of
limitations.”); cf. Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 466 (S.D.N.Y. 1999)
(“A reasonably diligent person would not wait six months, as plaintiff did, to take even a cursory
look at the new, widely released [infringed work].”).
In a similar vein, the failure to compensate a purported copyright owner, such as through
royalty payments, “constitute[s] clear ‘express repudiation’ of [a plaintiff’s] alleged co-ownership
of the copyright” and triggers the accrual of an ownership claim. Mahan v. Roc Nation, LLC, 634
F. App’x 329, 331 (2d Cir. 2016); accord Dewan v. Blue Man Grp. Ltd. P’ship, 73 F. Supp. 2d
382, 387 (S.D.N.Y. 1999) (finding non-payment of royalties gave plaintiff “ample reason to know
a lawsuit was necessary”). Here, Plaintiff alleges that Defendants never compensated him as a
copyright owner, such as through obtaining a license. See FAC ¶ 81. The “open distribution” of
the Show and Pilot “without paying any royalties to [Plaintiff] should have put [Plaintiff] on notice
that Defendants rejected his claim to copyright” and triggered the accrual of the ownership claim.
See Ortiz, 2008 WL 4449314, at *4. Plaintiff filed this action five-and-a-half years after the public
release of the Show and Pilot, which is two-and-a-half years after the statute of limitations expired.
(3) Mr. Seinfeld Consistently and Publicly Claims Sole Credit for Creating the Show.
Defendants’ original motion to dismiss argued that the Complaint’s admission that Plaintiff was
aware of Mr. Seinfeld’s public and “consistent[] claims [of] sole credit” “in interviews” and “the
press,” Compl. ¶ 36, “is perhaps the clearest basis for dismissing Plaintiff’s copyright claim as
time-barred.” Dkt. No. 22 at 13–14; see TufAmerica, Inc., 968 F. Supp. 2d at 600 (“[T]he facts

14

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alleged in a complaint . . . can be self-defeating.”). Recognizing that their client had pleaded
himself out of court, Plaintiff’s new attorneys entirely omitted this admission from the FAC.11
Regardless, there is an objective “reasonably diligent plaintiff” standard for notice and
“[a]n express assertion of sole authorship or ownership will start the copyright statute of
limitations running.” Netzer, 963 F. Supp. at 1315 (emphasis added). Courts within this Circuit do
not hesitate to dismiss copyright claims as time-barred when the allegations in a “complaint
demonstrate that [plaintiff] was aware of [defendants’] claims to her works well before three years
prior to filing her complaint.” Parks, 341 F. App’x at 738; accord Simmons, 810 F.3d at 116
(“[M]ore than three years prior to [plaintiff’s] filing of his suit, [defendant] had made clear to him
that he rejected [plaintiff’s] assertion of an interest in the copyright.”).
Defendants have located twenty publicly available news articles and interviews published
shortly after the release of the Show’s first episode through 2014 that describe Mr. Seinfeld as the
sole owner and/or creator of the Show. See Ex. F. This includes fourteen examples in which Mr.
Seinfeld, in his own words, “expresses in interviews that he alone created, directed and produced
the Show.” Compl. ¶ 36; see Ex. F.12 For example, in an August 23, 2012 press interview—just
over a month after the Show’s first episode was released—Mr. Seinfeld was asked, “So it’s
entirely your own project?” He replied, “Yeah, this is my personal little idea of a small, fun

11

12

Defendants request that the Court “consider the omitted facts in addressing Defendants’
arguments both as to why these omissions are ‘fatal to [Plaintiff’s] claims under the Copyright
Act,’ and as to their effect within the broader context of the motion to dismiss.” TufAmerica,
Inc., 968 F. Supp. 2d at 601 (citation omitted).
Defendants request that the Court judicially notices that press coverage and interviews given
by Mr. Seinfeld from just over a month after the release of the Show’s first episode in August
2012 through December 2014 describe Mr. Seinfeld as the sole owner and/or creator of the
Show. Ex. F. See Grecco v. Associated Press, 2017 WL 2913501, at *3 (S.D.N.Y. July 7,
2017) (“[A] court may ‘take judicial notice of the fact that press coverage . . . contained certain
information, without regard to the truth of their contents.’”) (citation omitted).
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show.”13 This public assertion repudiates Plaintiff’s claim that he created the Show. See Compl.
¶ 36; FAC ¶¶ 25, 90. “A defendant’s express assertion of adverse ownership . . . will trigger the
accrual of the statute of limitations.” Simmons, 2012 WL 1004857, at *4 (citation omitted).
C.

This Is A Textbook Case For Applying The Statute Of Limitations.

Defendants do not dispute that Plaintiff had a role in directing the Pilot. This is not
surprising, as all creative works that make their way to television require the contributions of
numerous participants. Courts, including the Second Circuit, have recognized this common sense
reality. Filming a show “is a collaborative process typically involving artistic contributions from
large numbers of people, including . . . producers, directors, and screenwriters.” 16 Casa Duse,
LLC v. Merkin, 791 F.3d 247, 258 (2d Cir. 2015). “But a director’s contribution to an integrated
‘work of authorship’ such as a film is not itself a ‘work of authorship’ subject to its own copyright
protection.” Id. at 259. Nevertheless, the case law is littered with examples of creative
participants coming out of the woodwork to claim copyright ownership of a creative work after it
has achieved financial success. See, e.g., Simmons, 2012 WL 1004857, at *4 (dismissing
time-barred ownership claim against hip-hop artist “50 Cent” for using plaintiff’s beat); Dewan,
73 F. Supp. 2d at 387 (dismissing time-barred ownership claim against the Blue Man Group for
using plaintiff’s composition). The Copyright Act’s three-year statute of limitations exists to
ensure that any claims seeking ownership in a work are timely adjudicated, which “permits
individuals to invest in the publication of copyrighted material without undue fear of
litigation.” Netzer, 963 F. Supp. at 1318. Hardly an “arbitrary obstacle[],” the statute of
limitations furnishes the “certainty and repose [that] are essential to the functioning of the
13

Katla McGlynn, Jerry Seinfeld Opens Up About ‘Comedians In Cars Getting Coffee’: ‘This Is
Just What We Like To Do’ (EXCLUSIVE), HUFFINGTON POST, Aug. 23, 2012,
https://www.huffingtonpost.com/2012/08/23/jerry-seinfeld-comedians-in-cars-getting-coffee
_n_1825716.html.
16

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copyright market.” Id. There must be certainty of copyright ownership and over the roles of
artistic contributors to allow market participants to invest in a creative work, such as through
licensing agreements and distribution deals. Here, SPT and Netflix signed deals with Mr. Seinfeld
to stream the Show on their platforms and produce new episodes. See FAC ¶ 92.
As set forth in Section III, Plaintiff released all claims arising from his work on the Show in
April 2012 in exchange for an agreed-upon payment. Plaintiff’s decision to file suit now—nearly
six years after he released his claims—disrupts the certainty of copyright ownership that SPT,
Netflix, and others relied upon when they invested considerable time and resources into making
the Show a resounding success. As Plaintiff admits, he only filed this meritless lawsuit after he
“learned” that the Show became a success and that Netflix was allegedly paying Mr. Seinfeld
“$750,000 per episode.” Id. ¶¶ 89, 92. This is precisely the type of belated, tactical, and
opportunistic behavior the statute of limitations is designed to address. “It is inequitable to allow
the putative co-owner to lie in the weeds for years after his claim has been repudiated while large
amounts of money are spent developing a market for the copyrighted material.” Netzer, 963 F.
Supp. at 1318 (quoting Zuill v. Shanahan, 80 F.3d 1366, 1370–71 (9th Cir. 1996)).
II.

THE COPYRIGHT CLAIM MUST BE DISMISSED BECAUSE PLAINTIFF
FAILS TO ALLEGE A PROTECTABLE COPYRIGHT INTEREST AND HIS
COPYRIGHT REGISTRATIONS ARE FRAUDULENT AND INVALID.
A.

Plaintiff Fails To Allege A Protectable Copyright Interest.

The FAC fails to state a copyright claim for a second and independent reason: Plaintiff
does not, and cannot, allege a protectable copyright interest. “To state a claim for copyright
infringement, a plaintiff must plausibly allege facts that demonstrate (1) ownership of a valid
copyright, and (2) the defendants’ copying of constituent, original elements of plaintiff's
copyrighted work.” McDonald, 138 F. Supp. 3d at 453 (citing Feist Publ’ns, Inc. v. Rural Tel.

17

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Serv. Co., 499 U.S. 340, 361 (1991)) (emphasis added). “Not every aspect of every creative work
is protected by copyright.” Id. at 454 (citing Feist, 499 U.S. at 345).
As a matter of law, Plaintiff cannot claim that his alleged idea of creating a show based on
comedians driving in a car to get coffee and engaging in comedic banter is “subject to copyright
protection because it consists of nothing but ‘common stock ideas’ and unoriginal scènes à faire
that do not rise to the level of original protectable expression.” Williams, 122 F. Supp. 3d at 163
(“Plaintiff does not own an enforceable copyright in the general idea of a reality show about
arranged marriages or marriage between strangers.”); see also McDonald, 138 F. Supp. 3d at 457
(“[A] theme of ‘referencing significant Americans’ is an uncopyrightable idea.”). Plaintiff lists
eight “segments from the Pilot” and nineteen “aspects of the Treatment and Script”14 that serve as
examples of what Defendants have allegedly “copied” in the Show. FAC ¶¶ 79, 80.
“[T]he ‘everyday life’ activities listed in the Treatment[,] [Script, and Pilot] as potential
elements of the [S]how do not extend the nature of the element[s] of the [T]reatment[,] [Script, and
Pilot] beyond mere scènes à faire associated with any [] television show that purports to document
a person’s everyday life, such as grocery shopping,” or in our case—getting coffee. Williams, 122
F. Supp. 3d at 164. In Williams, the court reasoned that “[a]ctivities like grocery shopping,
spending time with friends and family, decorating a new home, and visiting an amusement park
would necessarily appear in any program documenting a newly married couple’s everyday life and
are also, therefore, unprotectable scènes à faire.” Id. at 163. Applying that reasoning to our case,
activities like “[the host and guest] talking without interruption in the [car],” “talking without
interruption in the diner,” “having natural conversation, with no instruction or structure to their
14

Plaintiff conspicuously fails to attach his purported “Treatment” and “Script” to the FAC.
Defendants are puzzled by the FAC’s reference to a purported “Script,” as Plaintiff concedes,
the entire point of the Show is that it is unscripted. See FAC ¶ 80(o) (“Seinfeld and guest
having natural conversation, with no instruction or structure to their conversation.”).
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conversation,” and “driving the guest home,” FAC ¶¶ 79, 80, would necessarily appear in any
program about people driving to get coffee. Moreover, “[o]pening the show with detail close-up
shots of the host driving alone,” a “voiceover” describing the car, and “shots of [the host and
guest’s] enjoyment of the coffee,” id., “are all typical elements of a [show about cars and coffee’s]
production and are not protectable.” Williams, 122 F. Supp. 3d at 163–64; see also Castorina v.
Spike Cable Networks, Inc., 784 F. Supp. 2d 107, 112 (E.D.N.Y. 2011) (“[T]he treatment’s choices
in ‘select[ing], coordinat[ing] and arrang[ing]’ stock elements are largely inherently functional to
the idea of a sports reality show, not ‘original’ creative expressions of any particular idea.”)
(citation omitted); Edwards v. Cinelou Films, LLC, 2016 WL 9686986, at *4 (C.D. Cal. June 22,
2016) (“The remaining similarities are [] commonly-used artistic devices—such as scenes of a
person reading a book.”), aff’d sub nom., 696 F. App’x 270 (9th Cir. 2017).
Dozens of similar or copycat shows—sharing many of the elements in FAC ¶¶ 79,
80—emerged after Comedians in Cars Getting Coffee first aired. See, e.g., Carpool Karaoke; Jay
Leno’s Garage; Too Many Comedians in Cars Getting Coffee; Comedians on Bikes Getting Soup;
Comedians Walking & Getting Mani-Pedis; Cougars in Cars Getting Cosmos. Even though these
shows unapologetically copied (or paid tribute to) Comedians in Cars Getting Coffee, Mr. Seinfeld
has not sued them for infringement—nor could he—because there is nothing original about their
shared concept of a show based on people traveling together and engaging in comedic banter.15

15

For example, when the Show first premiered, British newspapers called it a “rip off” of Robert
Llewellyn’s web series, Carpool. Mr. Llewellyn responded that “while it’s clearly exactly the
same idea, shot in an almost identical way, it’s hard to suggest it’s a rip off. . . . The lawyers
confirmed that we couldn’t sue them and I wouldn’t want to.” Soraya Roberts, Jerry Seinfeld’s
“Comedians in Cars” Web Series Ruffles U.K. Feathers With Similarity to British “Carpool,”
DAILY BEAST, Aug. 2, 2012,
https://www.thedailybeast.com/jerry-seinfelds-comedians-in-cars-web-series-ruffles-uk-feath
ers-with-similarity-to-british-carpool (emphasis added).
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These shows are proof positive that the Show’s concept belongs to the world and is not subject to
copyright protection.16
B.

Plaintiff’s Copyright Registrations Were Fraudulently Obtained And Are
Invalid As A Matter of Law.

Plaintiff mistakenly relies on his copyright registrations to substantiate his ownership
claim. FAC ¶ 97. Although a “Copyright Office certificate of registration ‘constitute[s] prima
facie evidence of the validity of the copyright,’” “[a] challenge to the presumption may be made
through a showing ‘that there has been a fraud upon the copyright office’” “by proof of deliberate
misrepresentation.” We Shall Overcome Found. v. Richmond Org., Inc. (TRO Inc.), 221 F. Supp.
3d 396, 407 (S.D.N.Y. 2016) (citations omitted). Defendant Comedians in Cars, LLC, an entity
controlled by Mr. Seinfeld, obtained a copyright registration for the first episode of Comedians in
Cars Getting Coffee on September 8, 2016. Ex. E. Ten days later, Plaintiff fraudulently obtained
a copyright registration for the “Treatment” of “COMEDIANS IN CARS GOING FOR
COFFEE” (with an alternate title: “COMEDIANS IN CARS GETTING COFFEE”), listing
himself as the sole author. FAC Ex. A (emphasis added). There is no doubt the change in the
Show’s title (“going for” as opposed to “getting”) was designed to mislead the Copyright Office
into registering a copyright that directly conflicted with the one Mr. Seinfeld obtained.
Not content with one fraudulent registration, on May 8, 2018, Plaintiff—with the
assistance of his new counsel—filed two facially untimely, invalid, and false expedited copyright
registration applications for the Show’s purported “Script” and “Pilot.” FAC n.2–3. These
applications list 2011 as their date of “Completion/Publication,” rendering the registrations
16

Of course, Mr. Seinfeld’s copyrights for each episode of the Show are protected, even if the
Show was found to be “a compilation of unprotectible elements.” Knitwaves, Inc. v. Lollytogs
Ltd. (Inc.), 71 F.3d 996, 1004 (2d Cir. 1995). By contrast, as a director, Plaintiff’s
“contribution to an integrated ‘work of authorship’ such as a film is not itself a ‘work of
authorship’ subject to its own copyright protection.” 16 Casa Duse, LLC, 791 F.3d at 259.
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untimely by two years. FAC Exs. B and C; see 17 U.S.C. § 410(c) (“[T]he certificate of a
registration made before or within five years after first publication of the work shall constitute
prima facie evidence of the validity of the copyright.”) (emphasis added). The five-year
registration deadline exists because “the longer the lapse of time between publication and
registration the less likely to be reliable are the facts stated in the certificate.” Telerate Sys., Inc. v.
Caro, 689 F. Supp. 221, 227 (S.D.N.Y. 1988) (citation omitted). When a certificate of registration
is not timely filed, the “plaintiff carries the burden of proving ownership of a valid copyright.”
McCarthy v. Stollman, 2010 WL 11586609, at *6 (S.D.N.Y. Feb. 23, 2010). Here, Plaintiff fails to
proffer any proof to support his representation on the copyright applications that he is the sole
owner of the copyrights for the Treatment, Pilot, and the purported “Script” to an unscripted show.
To the contrary, the Complaint and FAC—accepting their allegations as true—both describe Mr.
Seinfeld as a partner in developing the Show. See Compl. ¶ 24 (“creative partner”); FAC ¶ 46
(“[T]ogether, they would release the Pilot and future Comedians in Cars Getting Coffee
episodes.”) (emphasis added). Misrepresentations concerning authorship “plausibly allege[] fraud
on the Copyright Office.” We Shall Overcome Found., 221 F. Supp. 3d at 408. In addition, courts
dismiss copyright claims on the basis of untimely registration and the failure to prove ownership.
See Mizioznikov v. Forte, 2017 WL 5642383, at*3 (S.D. Fla. Mar. 27, 2017) (“Mizioznikov . . .
failed to timely register the work. I[n] fact, it appears that Mizioznikov’s single interest in
copyrighting the work was fulfilling the statutory precondition to filing a lawsuit.”).
III.

PLAINTIFF RELEASED ALL CLAIMS RELATED TO THE SHOW.
Plaintiff’s FAC provides a new and distinct ground for dismissal. The April 11, 2012

email chain, Ex. C, expressly incorporated by reference and quoted in FAC ¶¶ 74–76,
unambiguously reveals that Plaintiff released all claims arising from his work on the Show in
April 2012 and never had the expectation of continued involvement in the Show. Two months
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after Mr. Seinfeld expressly repudiated Plaintiff’s request for “backend compensation,” FAC ¶¶
67, 70, on April 3, 2012, mouseROAR Co-Founder, Anne Estonilo, emailed Mr. Seinfeld’s
business associate, Carolyn Liebling, on Plaintiff’s behalf “to close the account” on the
“COMEDIANS IN CARS Project” in lieu of “having outside representation handle this issue.”
Ex. C at 1. On April 11, 2012, Estonilo proposed the following release to Liebling: “The company
has agreed to fully release any and all additional fees, damages, obligations etc. if the total of
$107,734.41 for the negative costs is received (net 15).” Id. (emphasis added). Instead of
challenging these bloated costs, Plaintiff admits that “[Mr.] Seinfeld agreed” to the terms of the
release proposed by Plaintiff’s representative and “Leibling [sic] sent payment in the stated
amount to mouseROAR.” FAC ¶ 76.
“[A] valid release constitutes a complete bar to an action on a claim which is the subject of
the release.” See Morefun Co. v. Mario Badescu Skin Care Inc., 588 F. App’x 54, 55 (2d Cir.
2014) (citation omitted); see N.Y. C.P.L.R. 3211(a)(5) (“[T]he cause of action may not be
maintained because of . . . [a] release.”).17 A plain reading of the April 11, 2012 email shows that
the release unambiguously applies to “any and all additional” claims for compensation related to
Plaintiff’s “work[] on the Project,” Ex. C at 1, which is the basis for the claims in this litigation.
See, e.g., FAC ¶ 93 (“Charles sent a letter directly to Seinfeld . . . to resolve the outstanding issue of
Charles’ involvement with the Project.”) (emphasis added). In exchange for the release, the “total
of $107,734.41” expressly includes Plaintiff’s “salaried rate,” Ex. C at 1, that, as Estonilo helpfully
explains, Plaintiff agreed to receive “[i]n lieu of the backend [compensation] . . . and the

17

New York law applies to the release and Plaintiff’s state law claims, as nearly all of the
significant events alleged in the FAC took place in New York. See, e.g., Tri-State Emp’t
Servs., Inc. v. Mountbatten Sur. Co., 295 F.3d 256, 261 (2d Cir. 2002).
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opportunity to direct additional episodes,” id. at 2. Therefore, the release clearly encompassed
any claim for future compensation from, or involvement in, the Show.
The FAC’s assertion that “no legal paperwork accompanied the transaction,” FAC ¶ 76, is
incorrect. “No particular form need be used in drafting a release . . . . All that is required is that
there be an expression of a present intention to renounce a claim or discharge an obligation.” Pratt
Plumbing & Heating, Inc. v. Mastropole, 414 N.Y.S.2d 783, 784–85 (3d Dep’t 1979). In fact, this
Court has previously enforced a release agreed to via email. See Estate of Andrea Brannon v. City
of New York, 2016 WL 1047078, at *3 (S.D.N.Y. Mar. 10, 2016) (Nathan, J.) (“The Court finds it
of further relevance that ‘the parties were not dealing with an oral agreement but one written in an
email.’”) (quoting Hostcentric Techs., Inc. v. Republic Thunderbolt, LLC, 2005 WL 1377853, at
*10 (S.D.N.Y. June 9, 2005)). The FAC must be dismissed on the basis of this unambiguous
written general release that Plaintiff proposed and that Mr. Seinfeld accepted and paid
$107,734.41 to procure. See Morefun Co., 588 F. App’x at 55–56; Matusovsky, 186 F. Supp. 2d at
399 (dismissing case on the basis of a general release that was attached to the motion to dismiss).
IV.

PLAINTIFF DOES NOT STATE A CLAIM FOR BREACH OF IMPLIED
CONTRACT, UNFAIR COMPETITION (MISAPPROPRIATION), OR
QUANTUM MERUIT.
Plaintiff’s attempts to repackage his deficient copyright claim as claims for breach of

implied contract, misappropriation, or quantum meruit fail for several distinct reasons.
Preemption. Plaintiff’s implied contract, misappropriation, and quantum meruit claims
are squarely preempted by the Copyright Act because they are “based on the same allegations
underlying his copyright claim: [D]efendants’ failure to compensate and credit him for the alleged
unauthorized use of” “Plaintiff’s Copyrights.” FAC ¶¶ 117, 126, 149. Smith v. New Line Cinema,
2004 WL 2049232, at *4 (S.D.N.Y. Sept. 13, 2004); see also We Shall Overcome Found., 221 F.
Supp. 3d at 413 (“[T]he breach of contract claim in this case simply reframes . . . whether the []
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copyright is valid.”); Wnet v. Aereo, Inc., 871 F. Supp. 2d 281, 291–92 (S.D.N.Y. 2012) (Nathan,
J.) (finding misappropriation and “unjust enrichment claims related to the unauthorized use of
copyrighted works are not ‘qualitatively different’ than copyright claims”) (citation omitted);
Lapine v. Seinfeld, 31 Misc. 3d 736, 751 (Sup. Ct. N.Y. Cty. 2011) (“[M]isappropriation claims
grounded solely in the use of a plaintiff’s protected expression are preempted by the Copyright
Act.”). “[O]nce a district court determines that a state law claim has been completely preempted
and thereby assumes jurisdiction over it, the court must then dismiss the claim for failing to state a
cause of action.” Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 309 (2d Cir. 2004).
No Novelty. Plaintiff’s breach of implied contract and misappropriation claims must be
dismissed because the concept of comedians driving in a car to get coffee is not a novel idea, but is
“simply a variation on a theme that already existed.” Zikakis v. Staubach Retail Servs., Inc., 2005
WL 2347852, at *3 (S.D.N.Y. Sept. 26, 2005). “[I]n order to recover under either [implied
contract or misappropriation], the plaintiff must establish the existence of a genuine issue as to the
novelty and originality of the allegedly misappropriated ideas. . . . Lack of novelty in an idea is
fatal to any cause of action for its unlawful use.” Lapine, 31 Misc. 3d at 743–44 (citations
omitted). Plaintiff concedes that the Show’s concept, with the Pilot featuring Mr. Seinfeld driving
in a small car with Mr. Marder, is a mere variation on filming Mr. Seinfeld and Mr. Marder’s
September 2000 “return to New York City from a cross-country drive . . . in Seinfeld’s
newly-purchased vintage Volkswagen Beetle” for the Comedian documentary. FAC ¶¶ 19, 20,
25; see Broughel v. Battery Conservancy, 2010 WL 1028171, at *4 (S.D.N.Y. Mar. 16, 2010)
(“[T]he idea must show true invention and not a mere adaptation of existing knowledge.”).
No Assent and Undefined Compensation. The implied contract claim must also be
dismissed because the FAC does not allege any “conduct by [Mr. Seinfeld] showing that [he]

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assented to a contract with [P]laintiff” or “the amount of compensation [P]laintiff claims []he is
owed.” See FAC ¶¶ 67, 70; Lapine, 31 Misc. 3d at 742; see also Marraccini v. Bertelsmann Music
Grp. Inc., 221 A.D.2d 95, 97 (3d Dep’t 1996) (finding an “undefined equity stake” unenforceable).
V.

PLAINTIFF DOES NOT STATE A CLAIM FOR HIS REMAINING STATE LAW
CAUSES OF ACTION.
Plaintiff’s “claims for tortious interference [] are based on allegations of unauthorized

exploitation of copyrighted material [and] are preempted by federal copyright law.” Netzer, 963 F.
Supp. at 1322–23; see FAC ¶ 130. Plaintiff also fails to plead a “sufficiently particular allegation
of interference with a specific . . . business relationship,” 16 Casa Duse, LLC, 791 F.3d at 262
(citation omitted), or “any factual allegations plausibly showing [Defendants acted] solely out of
malice,” Ace Arts, LLC, 56 F. Supp. 3d at 453. And, the unspecified date of the injury must have
occurred in 2012, FAC ¶¶ 74–76; Ex. C, or at least three years before this lawsuit, “rendering the
claims time-barred,” IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 141 (2009).
Plaintiff fails to plead fraudulent misrepresentation with particularity. See Rule 9(b);
Sampson v. MediSys Health Network, Inc., 2012 WL 3027838, at *10 (E.D.N.Y. July 24, 2012)
(failing to identify “who made the allegedly material misrepresentations” and “the specific time
when or place where [they] were made”). Plaintiff also fails to allege a single misrepresentation
that he reasonably relied upon. See Frederick v. Capital One Bank (USA), N.A., 2015 WL
5521769, at *11 (S.D.N.Y. Sept. 17, 2015) (Nathan, J.). Nor can he show his arm’s-length
relationship, FAC ¶¶ 62–70, “constitute[d] a ‘special relationship’ for purposes of a negligent
misrepresentation claim.” Cohen v. Avanade, Inc., 874 F. Supp. 2d 315, 327 (S.D.N.Y. 2012).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court dismiss the First
Amended Complaint with prejudice and grant such further relief as appropriate.

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Dated: New York, New York
June 29, 2018

Respectfully Submitted,
GIBSON, DUNN & CRUTCHER LLP
By:

/s/ Orin Snyder

Orin Snyder
David M. Kusnetz
200 Park Avenue
New York, NY 10166-0193
Telephone: (212) 351-4000
Facsimile: (212) 351-4035
osnyder@gibsondunn.com
dkusnetz@gibsondunn.com
Attorneys for Defendants Jerry Seinfeld,
Columbus 81 Productions, Inc., Embassy
Row, LLC, Comedians in Cars, LLC, Sony
Pictures Television Inc., and Netflix, Inc.

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