Should Have Seen That One Coming: Claims Over A&E's "Miss Cleo: Her Rise and Fall" Dismissed

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:

The only material for which the Complaint adequately alleges (1) the specific works that are the subject of the copyright claim, (2) PRN's ownership of the copyrights for those works, and (3) that the copyrights are registered are the Miss Cleo tarot deck, book, and videocassette. PRN "fails to allege [its] present ownership of the [other] copyrights at issue." Beyond a bald assertion that it "is the holder of a seven [sic] registered copyright[s] for Miss Cleo Creatives," PRN provides this Court with no evidence that it can lawfully pursue copyright infringement claims for anything beyond the three pieces of media for which it supplies registration numbers….

Having narrowed the copyrights at issue here to the Miss Cleo tarot deck, book, and videocassette, the only remaining issue is whether PRN has adequately pled "by what acts during what time the defendant infringed the[se] copyright[s]." Even under the most generous reading of the Complaint, PRN fails to meet this requirement.

Regarding copyright infringement, the Complaint alleges that "the Film freely copies and recreates Plaintiff's 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.'" It also states that "Defendants have infringed Plaintiff's copyrights in Plaintiff's Miss Cleo Creatives by reproducing, distributing, and making available to the public the infringing 'Miss Cleo: Her Rise and Fall' production without authorization in violation of the Copyright Act."

But these statements are not enough to "give the defendant[s] fair notice of what the … claim is and the grounds upon which it rests." "Rule 8 [of the Federal Rules of Civil Procedure] requires that the particular infringing acts be set out with some specificity. Broad, sweeping allegations of infringement do not comply with Rule 8." Here, PRN's Complaint—which does not so much as even mention if, when, and where the three copyrighted works appear in the allegedly infringing biopic—cannot stand.

The court also rejected PRN's trademark claim:

[T]he Complaint provides no evidence that PRN "owns a valid protectable mark" in Miss Cleo…. [T]he Complaint states that one of PRN's subsidiaries had "applied for registration of the mark 'Miss Cleo' with the United States Patent and Trademark Office." It does not say that the Miss Cleo mark was registered at the time PRN commenced this case. And, in fact, PRN acknowledges that "the final registration [for the Miss Cleo mark] was issued by the USPTO on January 7, 2025…. PRN's acknowledgement that it did not hold a valid, protectable registered trademark at the time this case was filed is fatal to its Lanham Act claim…. And [PRN's] lack of standing is not cured by the fact that the Miss Cleo mark was eventually registered because "standing is measured as of the time the suit is brought." …

The court therefore declined to consider plaintiffs' state law claims ("for deceptive and unfair trade practices, for unjust enrichment, and for defamation"), leaving them to any future state court proceeding. And the court noted,

Defendants submitted, as an exhibit, a physical copy of "Miss Cleo's Tarot Power Deck." Unfortunately, the Court could not divine the proper outcome of this Motion by tarot.

CeCe Cole and Scott Jonathan Sholder (Cowan DeBaets Abrahams & Sheppard) represent defendants.