Starting in the early 2000's, U.S. Attorney for the Southern District of New York Preet Bharara worked with a seemingly singular mission in mind: to put a stop to legendary Wall Street titan Steve Cohen. The two powerful men – one, a prodigious public servant for the state of New York, the other, the founder of SAC Capital, a $16 billion hedge-fund that, in its heyday controlled some 3 percent of all daily activity on the New York Stock Exchange – would engage in a nearly decade-long war, one that would ultimately result in an insider trading and securities fraud indictment against SAC and several of its employees in late 2013.
Cohen’s fund would enter a guilty plea and submit to a $1.8 billion financial penalty, while the founder, himself, remained relatively unscathed, save for the civil case filed against him personally. That case settled in early 2016, and prohibited him from managing outside money until 2018.
The duel between Bharara and Cohen was so dramatically-flared and closely-watched that it fueled no small number of of-the-moment headlines. It also spawned suspense-saturated long reads after the fact, once Cohen had slinked out of the daily headlines and back to his 35,000 square foot home in Greenwich, Connecticut. Beyond that, though, the events made for the perfect storyline – in the eyes of Brian Koppelman, David Levien, and Andrew Ross Sorkin – for premium television. Showtime would ultimately agree, adding Billions to its lineup of in-demand television titles like The Affair, the return of Twin Peaks, and Shameless, etc.
But Sorkin and co. needed help formulating an additional plot line, one that would make for binge-worthy television for those not particularly enticed by the world of high-stakes Wall Street finance. So, they inserted a female lead, a psychologist-turned-performance coach that works inside hedge-fund called Axe Capital, the one mirrored after Cohen’s SAC.
Three years after Billions, which stars a dueling Paul Giamatti and Damian Lewis, first hooked an audience with its “loose” depiction of SDNY v. SAC, the fight has squarely shifted from Bharara and Cohen (the latter of whom returned to trading last year when his Point72 family office began welcoming outside investors last year) to a fight waged by a Wall Street performance coach, who claims that the makers of Billions not only ripped off her book to create the wildly popular show, but also stole her “persona” to supplement their storyline.
According to the complaint that New York-based author and financial performance coach Denise Shull, 59, filed against Koppelman, Levien, Sorkin, Showtime and CBS late last month, the show's creators crafted a main character, Dr. Wendy Rhoades “based in part on [her copyright-protected book] Market Mind Games and [her] persona as a performance coach to financial professionals … without recognition and compensation, and of course, without her consent.”
The show's creators allegedly enlisted Shull in 2015 to help “assist [them] in the creation of Billions.” This saw Shull participate in a phone conference and a subsequent meeting with Koppelman and Levien and actress Maggie Siff, who plays a hedge-fund performance coach in the show, about “all aspects of … her work as a performance coach to hedge funds and other financial firms and [her] unique approach to trading and investing psychology.” Shortly after providing them with “assistance with the development of the female lead character,” Shull claims they cut her out of the equation entirely.
Fast forward to the January 2016 debut of Billions and Shull says that despite not being credited or compensated by the show-makers, “Key aspects of Billions and the character of Dr. Wendy Rhoades, in particular, are merely derivative works of [her] book.” As a result, the show amounts not only to copyright infringement, since copyright holders maintain the exclusive right to create works based on or derived from his/her already-existing copyright-protected works, Shull asserts. It is also a “willful violation of [her] common law right of publicity,” since the show makes use of her “style and persona” for a commercial purpose without her authorization.
Still yet, Shull claims that the makers of the show are on the hook for running afoul of her “right to be free from unwarranted intrusions into her privacy,” and have injured her valuable business reputation (a claim that may or may not be linked to the show's depiction of Rhoades as a dominatrix in her spare time), and engaged in deceptive trade practices. As a result, she is seeking damages in an amount to be determined at trial and injunctive relief, which would force the defendants to immediately and permanently cease all use of her copyright protected materials and her persona.
What is not mentioned in Shull's suit, however, is the behind-the-scenes battle that has been brewing in connection with Shull's alleged involvement in the show. While Shul has been promoting herself – by way of her company The Rethink Group's website – as “the inspiration behind the Wendy Rhoades character on Showtime’s Billions” and her role in “consulting” on the show, Showtime says that no such thing occurred. As reported by Deadline, “Showtime’s attorneys sent Shull a letter in March of 2017, demanding that she stop promoting herself as the inspiration for the character or describing herself as a consultant on the show.”
That letter prompted Shull to seek legal counsel, and beat Showtime and the Billions creators to filing suit.
It is unclear how strong, exactly, Shull’s case is, and to what extent the materials that the Billions creators allegedly stole from her book are protectable expressions as opposed to more general (and unprotected) ideas tied to the work of finance-specific performance coaches or therapists. Showtime is not convinced. “Ms. Shull has cycled through multiple law firms and theories of her supposed case, as part of her repeated failed attempts to force us to engage her as a consultant on our show,” a rep for the network said in a statement. “We are confident her lawsuit will similarly fail.”
* The case is Shull et al v. Sorkin et al, 1:18-cv-12400 (SDNY).