From today's decision by Judge Dale Ho (S.D.N.Y.) in Psychic Readers Network, Inc. v. A&E Television Networks, LLC:
"Call me now!" So ordered Miss Cleo, a television psychic who, in the late 1990s, offered purported spiritual guidance via a pay-per-minute telephone hotline. Last autumn, Hillionaire Productions LLC and A&E Television Networks, LLC … produced and aired, respectively, a biopic about Miss Cleo's life. Plaintiff Psychic Readers Network ("PRN") subsequently filed this lawsuit. PRN claims it created the Miss Cleo persona and that it holds several copyrights and trademarks associated with the Miss Cleo character. It accuses Defendants of, inter alia, copyright infringement, trademark infringement, and unjust enrichment based on the biopic's script and imagery….
Unless otherwise specified, the following facts are taken from PRN's Amended Complaint and the documents incorporated by reference therein. The Court assumes these facts are true for the purpose of adjudicating this motion to dismiss….
PRN began offering psychic readings over the telephone in the 1990s. Later that decade, PRN selected Youree Dell Harris, one of its telephone "psychic advisors," to serve as its spokesperson. Harris performed her spokesperson duties in character as "Miss Cleo," a spirited "clairvoyant" who purported to use tarot cards to predict callers' futures. PRN "created the Miss Cleo persona," which "became famous" based on PRN's extensive advertising efforts. Capitalizing on Miss Cleo's popularity, PRN "created television commercials, infomercials, press relations, campaigns, radio spots, books, tarot cards and numerous other materials all featuring the Miss Cleo character [to] promot[e] its psychic services and products." …
PRN filed this suit after "Defendants produced and began distributing the film 'Miss Cleo: Her Rise and Fall.'" PRN alleges that "Miss Cleo: Her Rise and Fall" ("the biopic") "freely copies and recreates [its] copyrighted materials, including, but not limited to, use of the look and feel of Plaintiff's television commercials including the Miss Cleo character's appearance, dress and tag lines such as 'Call Me Now.'" Defendants did not receive permission from PRN to include the Miss Cleo character in the biopic. Moreover, PRN avers that the biopic is "replete with false statements and inaccuracies," including a "false portrayal of an officer of PRN as a drunken, ruthless Wall Street CEO."….
People writing and making films about copyrighted or trademarked material generally have considerable latitude to quote parts of the material in the process (under fair use and related doctrines). But here, the court didn't have to reach that, because it found that plaintiff's Complaint hadn't adequately alleged infringement:
