One Prodigy Is Not the Same as Another: Everette Hallford v. Fox Entertainment Group Inc.
On February 13, 2013, U.S. District Judge William H. Pauley III held that Fox Entertainment Group, Inc. had not infringed the copyrights of Everette Hallford with its show “Touch.” Kiefer Sutherland and the show’s writer Richard Kring were also named as defendants in the suit.
Everette Hallford claimed that “Touch” bore a remarkable resemblance to his screenplay entitled “Prodigy,” based on his earlier novel “Visionary,” which centered on an autistic boy with special powers and an investigative journalist. Hallford’s argument was that “Touch” contains his screenplay’s ideas for characters, plot developments, and themes. Hallford claimed that a copy of “Visionary” and “Prodigy” were passed to “Touch’s” writer Richard Kring through a hospital’s bioethics representative, Robert Cassidy Jr., whom Hallford became friendly with while visiting his ailing infant granddaughter.
The attorney representing Fox, Jonathan Zavin of Loeb & Loeb LLP, told the court that the notion of a boy with the ability to view the “interconnectedness” of things was merely a vague idea — not a copyrightable expression. Hallford’s attorney Joseph D. Nohavicha of Mavromihalis Pardalis & Nohavicka LLP argued that, aside from the obvious plot and character similarities, after a cease-and-desist letter sent to Fox, subsequent episodes of “Touch” centered less on the protagonist’s autism.
In denying relief to Hallford, the court rejected any substantial similarity between the works. After noting that “Visionary” bears no substantial similarities to either “Prodigy” or “Touch,” the court considered whether “Touch” violated the “Prodigy” copyright. In denying the copyright infringement claim, the court stated that “[t]he average lay observer—no matter how discerning—would not recognize that Touch was appropriated from Prodigy because this is not ‘one of those relatively unusual cases’ where the infringing work copies the ‘particular’ or ‘same’ selections made in the copyrighted work, and the two works are different in total concept and overall feel.”
The court noted that the plotlines and sequence of the two works are completely different. “Prodigy” focuses on the autistic boy helping to solve one particular mystery, while “Touch” spans across multiple events and countries. Furthermore, the main characters, although having some matching traits, are not substantially similar. For example, the court’s opinion mentions that one boy is orphaned while the other is not, and while Jonathan of “Prodigy” speaks through tape recordings of his voice, “Touch’s” Jake prefers “symbols and coded messages.” Finally, although both works share the theme of “interconnectedness,” their “concept and feel” are not substantially similar.
Hallford plans to appeal the district judge’s opinion.