Walkie Check Productions, LLC v. ViacomCBS Inc.

Background

Walkie Check Productions, LLC owns a registered copyright in a treatment for a show called “House Party.” The treatment described a show centered on a crowded house party at a Manhattan brownstone, with celebrity guests, musical performances, a hostess filming with a smartphone, switching between vertical and horizontal video, and unscripted interactions.

Walkie Check alleged that it presented the concept and production materials to representatives of ViacomCBS Inc., Black Entertainment Television LLC, and BET Productions IV, LLC beginning in 2015. The parties negotiated for several years but never signed an agreement. In 2020, Defendants launched a “House Party” series on BET’s Instagram Live. Walkie Check alleged that the series was virtually identical to its copyrighted work. Defendants argued that their series was based on a different and broader concept.

Walkie Check asserted claims for copyright infringement, breach of implied contract, quantum meruit, and unjust enrichment. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legally plausible claim.

Copyright-Infringement Claim

The court held that Walkie Check adequately stated a copyright-infringement claim. Defendants appeared to concede, for purposes of the motion, that actual copying could be assumed. The court therefore focused on whether the works were substantially similar in their protectable elements.

The court concluded that Walkie Check’s treatment contained both protectable and unprotectable elements. The title “House Party,” livestreaming as a medium, a vertical camera orientation, and similar performers or distribution schedules could not, by themselves, support copyright infringement. But the court found that the treatment’s combination of creative choices—including livestreaming from mobile devices, real-time social-media interaction, an unscripted format, switching between vertical and horizontal video, and intimate viewer access—could constitute a protectable work when considered together.

Because the treatment included both protectable and unprotectable elements, the court applied the “more discerning” ordinary-observer test. That test asks whether the protectable elements, considered together, are substantially similar rather than treating unprotected ideas or common features as infringement.

The court recognized significant differences between the works. Walkie Check’s treatment described a literal, crowded, energetic party, while BET’s series presented varied entertainment, with episodes focused on subjects such as music, cooking, fitness, health, and conversations. But Defendants had submitted only 25 recorded episodes, while Walkie Check identified at least 86 livestreamed episodes, and the available promotional materials did not cover all listed episodes. The court therefore lacked enough information to determine as a matter of law that no episode was substantially similar to Walkie Check’s treatment. It denied dismissal of the copyright claim and stated that Walkie Check could pursue discovery on it.

Implied-Contract Claim

The court dismissed Walkie Check’s claim that Defendants breached an implied-in-fact contract by using the House Party concept without paying or crediting Walkie Check. Applying New York law, the court explained that an implied contract requires facts showing an offer, acceptance, consideration, mutual assent, and an intent to be bound.

The court found that Walkie Check’s own allegations contradicted the existence of such an agreement. The parties had engaged in extended negotiations, exchanged unsigned draft agreements, disagreed about material terms, and never reached a final agreement. Defendants later repeatedly rejected efforts to revive the project and told Walkie Check that it could explore the idea with other partners. The court concluded that these facts did not show mutual assent or an intent to be bound by an implied agreement. It dismissed the breach-of-implied-contract claim.

Quantum-Meruit and Unjust-Enrichment Claims

The court dismissed the quantum-meruit and unjust-enrichment claims as preempted by the Copyright Act. Preemption means that federal copyright law displaces a state-law claim when the claim concerns a copyrightable work and seeks to enforce rights equivalent to copyright rights.

The court treated the quantum-meruit and unjust-enrichment theories together as related equitable claims. It found that both were based on the allegation that Defendants benefited from reproducing and distributing aspects of Walkie Check’s copyrighted work without credit or compensation. Because Walkie Check identified no additional element that made these claims qualitatively different from its copyright claim, the court held that they were preempted by federal law and dismissed them.

Disposition

The court granted in part and denied in part Defendants’ motion to dismiss. The copyright-infringement claim remained pending and could proceed to discovery. The court dismissed the breach-of-implied-contract claim and dismissed the quantum-meruit and unjust-enrichment claims as preempted. The court directed Defendants to answer the complaint by July 11, 2022, and directed the parties to file a joint status letter and proposed case-management plan by July 18, 2022.