Walkie Check Productions, LLC v. ViacomCBS Inc.

Background

Walkie Check Productions, LLC co-owned a registered copyright in a treatment for a show called “House Party.” In 2015, Walkie Check pitched the concept to executives affiliated with ViacomCBS Inc., Black Entertainment Television LLC, and BET Productions IV, LLC. The treatment described a lively party in a New York City apartment or brownstone, with a hostess, partygoers, celebrity guests, musical performances, direct interaction with viewers, and various filming and presentation choices.

The defendants later produced their own “House Party” series. The series consisted of livestreamed episodes on Instagram Live and Facebook Live, beginning in March 2020 and ending in January 2021. The episodes varied widely and included discussions, cooking, fitness, yoga, dance instruction, and musical performances. Many episodes were not automatically recorded by the livestreaming platforms. Walkie Check claimed that the defendants’ series infringed its copyright and sought sanctions based on the defendants’ failure to record and preserve some episodes after receiving notice of Walkie Check’s planned lawsuit.

In an earlier ruling, the court had granted in part and denied in part the defendants’ motion to dismiss, leaving the copyright-infringement claim for further proceedings. After discovery, the defendants moved for summary judgment, which asks whether the undisputed evidence requires judgment without a trial. Walkie Check filed a cross-motion for sanctions based on alleged destruction or failure to preserve evidence.

Spoliation-sanctions motion

The court denied Walkie Check’s cross-motion for spoliation sanctions. Spoliation generally involves destroying, significantly altering, or failing to preserve evidence that should have been kept for reasonably foreseeable litigation. The court ruled that the defendants’ failure to record livestreams did not constitute spoliation because the unrecorded episodes were not existing records that the defendants later destroyed or altered. Preservation obligations do not generally require a party to create new records that would otherwise not exist.

The court also concluded that Walkie Check had not shown that the missing recordings would have supported its infringement claim. Even assuming the defendants had some obligation to record episodes after receiving notice of the dispute, the evidence showed at most negligence, not the intent required for the requested adverse inference. An adverse inference would allow a court or jury to presume that missing evidence was unfavorable to the party that failed to preserve it. The court therefore denied sanctions under both the federal discovery rules and its inherent authority.

Summary judgment and copyright analysis

The court granted the defendants’ motion for summary judgment. Walkie Check had to show ownership of a valid copyright and copying of original elements of its work. The court found that Walkie Check co-owned a valid copyright in the original treatment, satisfying the ownership requirement. The dispute therefore turned on whether the defendants’ series was substantially similar to the protectable parts of Walkie Check’s work.

The court explained that copyright protects original expression, not general ideas, facts, or common features that naturally follow from a particular concept. Walkie Check’s work was a compilation of several creative choices, so its copyright protection was “thin.” That meant the defendants would have had to copy the particular selection and arrangement of those elements very closely, rather than merely use common features such as livestreaming, musical performances, casual filming, social-media distribution, red lighting, audience interaction, or vertical and horizontal camera formats.

For the episodes supported by video, the court found no substantial similarity as a matter of law. Walkie Check’s work centered on a crowded, energetic party with celebrity guests, a chatty and flirtatious hostess, a visible live audience, artist-related graphics, and performances that energized the crowd. The defendants’ episodes generally showed artists alone or with only a small number of people, often performing from homes or other isolated settings. The defendants’ episodes did not include the same party setting, live audience, celebrity-filled environment, hostess commentary, or artist-information graphics.

For episodes without video evidence, Walkie Check relied on promotional materials, production one-sheets, and screenshots. The court found that those materials showed only general features such as the title “House Party” and livestreamed musical performances. The court ruled that the title was not copyright-protectable and that the available materials did not establish that the missing episodes contained the protectable arrangement of elements in Walkie Check’s work. Walkie Check’s uncertainty about what the unrecorded episodes might have contained was not enough to create a genuine dispute requiring a trial.

Disposition

The court granted the defendants’ motion for summary judgment and denied Walkie Check’s cross-motion for spoliation sanctions. It directed the clerk to terminate the pending motions, adjourn all remaining dates, and close the case. The opinion was issued under seal, with the parties ordered to submit proposed redactions.