Canadian hit drama show, Orphan Black is a science fiction show that has riveted viewers for five seasons. The show premiered in March of 2013 in Canada and in the United States on BBC America. It wasn’t long before the show built a loyal fan base that tuned in every week to follow along with the futuristic characters that highlight the possibilities of human cloning. Throughout the course of its run time, the show gained national acclaim and led starring actress Tatiana Maslany on the path to winning a Primetime Emmy Award and two Critics’ Choice Television Awards. Though the show amassed a large following, not all of the attention was praise and awe. Not long after the show premiered, Orphan Black found itself in the crosshairs of an intellectual property dispute leading some to question if the Orphan Black show idea was stolen.
In April of 2014, writer Stephen Hendricks filed a lawsuit in California Federal Court that alleged that BBC America along with Temple Street Production, the company which produced the show, stole his intellectual property after they produced and aired the TV drama, Orphan Black. In his lawsuit, Hendricks explains that in its early stages, Orphan Black contained “the same, unusual core copyrightable expression as the Screenplay; i.e. the clandestine development of clones and the resulting journey of the protagonist to discover her origins.” As part of his lawsuit, Hendricks sought $5,000,000 in damages.
In the complaint, Hendricks explains that he wrote his original screenplay which went by the name Double Double in the late 1990s. In addition to registering his screenplay with the Writers Guild of America, Hendricks also registered his screenplay with the U.S. Copyright Office as well. Hendricks alleges that in 2004, through conversation with the production company Temple Street, he was told by an assistant to send over a summary of his screenplay along with the screenplay itself. After having sent in his summary and the actual screenplay to the production company for review, he was later notified that the production company was going to “pass” on further collaboration with him. David Fortier who was a co-president of Temple Street Productions at the time later served as an executive producer on the show Orphan Black. Hendricks alleges that through this communication, his intellectual property of Double Double was unlawfully taken from him.
In his complaint, Hendricks highlights a range of similarities between his screenplay and the hit TV drama. The lawsuit explains, “The similarities between the Series and the Screenplay are so substantial that it is a virtual statistical impossibility that the former could have been created independently from the latter.” It adds, “Both protagonists are young (early 20s), attractive women who want the same thing: to understand who they are and where they come from.” The complaint also adds, “The protagonist’s birth certificate is a key clue that makes her suspicious about her origin,” and that “The recurring theme of clones reproducing is also present in both.”
Temple Street productions and co-president David Fortier explains that the show was not the result of stolen intellectual property but rather that it was the brainchild of Graeme Manson and John Fawcett.
Following his 2014 lawsuit, in 2016, Hendricks filed suit against independent individuals associated with the TV show in the Los Angeles County Superior Court. In his second lawsuit, Hendricks sought breach of implied contract as opposed to copyright infringement in the first lawsuit. During the discovery process, Hendricks’ claims were dismissed by the court without prejudice.
While there was back and forth during the litigation process, the case highlights the nuances that exist when it comes to battling copyright infringement cases. While this case is an extreme highlight of what may occur in high profile copyright infringements of intellectual property, it remains clear that such cases can often be drawn out and costly. Although the court has determined that the claims were, by and large, dismissed, the facts don’t lie, and the decision as to whether or not the idea for the show Orphan Black was stolen remains in the hands of the court of public opinion.