Loyola of Los Angeles Entertainment Law Review Volume 9 Number 1 Article 8 1-1-1989 The Cosby Show: Just Another Sitcom Deborah A. Levine Follow this and additional works at: https://digitalcommons.lmu.edu/elr Part of the Law Commons Recommended Citation Deborah A. Levine, The Cosby Show: Just Another Sitcom, 9 Loy. L.A. Ent. L. Rev. 137 (1989). Available at: https://digitalcommons.lmu.edu/elr/vol9/iss1/8 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE COSBY SHOW: JUST ANOTHER SITCOM? Submitting an idea to a television network that eventually becomes one of the hottest shows in television history may not be a bonanza for the submitter. Hwesu S. Murray, a submitter, filed a lawsuit to find out if he was entitled to any benefits from his concept. According to the court in Murray v. National Broadcasting Co., I the network can use the idea without compensating or acknowledging the submitter if the idea is not sufficiently novel. However, prior cases applied a different standard to similar situations, denying protection only when an idea is "wholly lacking in novelty." 2 I. STATEMENT OF FACTS In 1979, Hwesu S. Murray was hired by National Broadcasting Company ("NBC") as a unit manager for its sports division. His duties included financial analysis, budget control and other activities pertaining to NBC sports programming. However, he was not responsible for sub- mitting ideas for new television programs.3 In 1980, Murray had some ideas for television programs and dis- cussed them with William Dannhauser, an NBC official. Pursuant to Dannhauser's instructions, Murray submitted his ideas as written pro- posals for five new television shows.' One of the proposals, "Father's Day," was a situation-comedy about a black middle-class family. The leading character would be the father, a 45-year-old attorney and a de- voted family man.' On June 27, 1980, Murray submitted this idea to Dannhauser in the form of a one-page proposal with a cover letter. At the same time Murray submitted the proposals, he informed Dannhauser that if NBC wanted to produce any of his programs, Mur- ray wanted to be the executive producer and packager of the program as well as receive proper credit and compensation as producer and creator.7 Murray also told NBC he was submitting his proposals in confidence.8 1. 844 F.2d 988 (2d Cir. 1988). 2. Graham Prod. v. National Broadcasting Co., 75 Misc. 2d 334, 337, 347 N.Y.S.2d 766, 769 (N.Y. Sup. Ct. 1973). 3. Murray v. National Broadcasting Co., 671 F. Supp. 236, 237-38 (S.D.N.Y. 1987). 4. Id 5. Id. at 240. 6. Id. at 238. 7. Id. 8. Murray, 671 F. Supp. at 238. LOYOLA ENTERTAINMENT LAW JOURNAL [Vol. 9 Dannhauser asked Murray to expand some of the proposals, includ- ing "Father's Day," and submit them to Josh Kane, then an NBC vice president and one of two top entertainment programming officials for the network.' The proposal for "Father's Day" was expanded to two pages and included the suggestion that Bill Cosby play the father and Diahann Carroll play his wife. The proposal included other casting suggestions and discussed details of the show. The characters included a working wife and five children, with the eldest child away at college making only periodic visits home.10 On November 1, 1980, Kane received the ex- panded two-page proposal. After submitting the proposal, Murray made an oral presentation to Kane to provide further ideas for the characters and story lines. On November 21, 1980, NBC returned the proposal to Murray, stating the network was not currently interested in his idea." On September 20, 1984, NBC aired The Cosby Show, a situation comedy starring Bill Cosby as the father of an upper middle-class black family. Cosby's character is a doctor and his television wife a lawyer. 2 Murray claimed the show came directly from his proposal and brought suit against NBC; Brandon Tartikoff, president of NBC En- tertainment; the Carsey-Werner Company ("Carsey-Werner"), the pro- ducers with whom NBC had an agreement for the development of the series; 3 and Marcia Carsey and Thomas Werner, the principals of Car- sey-Werner (collectively "defendants"). Murray's complaint included allegations of race discrimination in violation of Title 42 U.S.C. sections 1981 and 1982.' Murray also al- leged misappropriation, conversion, breach of implied contract, unjust enrichment and fraud.' 5 Defendants moved for summary judgment to dismiss the complaint on the ground that Murray's idea lacked the nov- elty required to sustain a misappropriation action.' 6 After analyzing the facts, the United States District Court for the Southern District of New York granted summary judgment for the de- fendants in July 1987.17 The court held that Murray's idea was not suffi- ciently novel to create a property interest.18 In April 1988, the United 9. Id. 10. Id. at 240. 11. Id. at 238. 12. Id. 13. Murray, 671 F. Supp. at 237. 14. Id. at 238; 14 U.S.C. §§ 1981-1982 (1988). 15. Id. at 238-39. 16. Id. at 239. 17. Id. 18. Murray, 671 F. Supp. at 245. 19891 IDEA PROTECTION States Court of Appeals for the Second Circuit affirmed the district court's decision. 19 II. THE COURT'S REASONING The district court noted that the two elements which must be pres- ent before a property right in an idea can exist are novelty and original- ity.20 The court then determined that the threshold issue was the novelty of Murray's idea.2 Both parties stipulated that New York law would govern.2 2 Under New York case law: "where plaintiff's idea is wholly lacking in novelty, no cause of action in contract or tort can stand based upon the alleged misappropriation of that idea. Even if it be assumed that defendant had utilized plaintiff's idea, plaintiff may not recover if the idea was unoriginal."2 3 The court concluded that Murray's idea was not sufficiently novel for several reasons. First, Murray himself described "Father's Day" as resembling Father Knows Best and The Dick Van Dyke Show. 24 The court stated that an idea for a family situation comedy with a white fam- ily would not be novel since the networks have run many variations of this theme.2 5 Therefore, Murray's novelty claim rested on the variation of using a black family.2 6 The court failed to uphold Murray's assertion because Murray's idea simply combined two common ideas which had been used before- the family situation comedy and the use of black actors in a nonstere- otypical manner.2 The court also noted that in a 1965 interview, Bill Cosby told a reporter he wanted to make a situation comedy similar to The Dick Van Dyke Show, but with black actors.28 In addition, the court concluded that The Cosby Show was merely a continuation of Cosby's humor and style.2 9 Therefore, since the concept of a nonstereotypical 19. Murray, 844 F.2d at 990. 20. Murray, 671 F. Supp. at 239 (citing Downey v. General Foods Corp., 31 N.Y.2d 56, 286 N.E.2d 257, 334 N.Y.S.2d 874 (1972)). 21. Murray, 671 F. Supp. at 239-40. 22. Id. at 239. 23. Id. (footnote omitted) (quoting Graham Prod. v. National Broadcasting Co., 75 Misc. 2d 334, 347 N.Y.S.2d 766 (N.Y. Sup. Ct. 1973)). 24. Murray, 671 F. Supp. at 241. 25. Id. 26. Id. 27. Id 28. Id. at 244. 29. Id. LOYOLA ENTERTAINMENT LAW JOURNAL [Vol. 9 black family on television had been used previously, 30 and concluding novel, 3 the court that a variation on a basic theme cannot be considered ' 32 held that Murray had no legally protectable interest in "Father's Day" and granted NBC's motion for summary judgment.33 In addition, the court dismissed the entire complaint because Murray could not prove novelty, an essential element of all his claims.34 On appeal, the court of appeals limited its consideration to whether the district court had properly concluded that defendants were entitled to summary judgment. 35 The court of appeals affirmed the lower court's decision, agreeing that Murray had no protectable interest because his idea lacked novelty.36 The court recognized that the idea of portraying blacks in a nonster- eotypical manner had existed for decades. Therefore, Murray's conten- tion that his idea represented a breakthrough in television programming which was entitled to protection did not support a finding of novelty as a matter of law.37 The court acknowledged that The Cosby Show was a breakthrough, but concluded this was merely the achievement of a more positive, fair and realistic portrayal of blacks, a need which many black Americans, including Cosby, had recognized for many years.38 However, the dissent rejected the majority's findings and disagreed that the idea for one of the most successful situation comedies in televi- sion history could be considered so unoriginal that the person who con- ceived it was not entitled to protection. 39 The dissent stated that although there was evidence that Murray's idea was not novel, there was also contrary evidence, thus raising a genuine issue of material fact to be decided by a trier of fact.' Therefore, the dissent concluded the district court improperly granted summary judgment.4 The dissent relied on such evidence as the agreement between NBC and Carsey-Werner.