New Hampshire filmmaker sues CBS over ‘Brotherhood’ television show

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The makers of the independent film “Brotherhood” may lose their lawsuit against the new TV show “The Brotherhood of Poland, New Hampshire.” But they stand to win big in the publicity sweeps.

In a suit filed in Concord, N.H., the writer and producer of “Brotherhood” are accusing television producer David E. Kelley of stealing the name, themes and setting of their feature film: the lives of several men, played out in a diner in a small New Hampshire town.

Michael MacLeod, his Manchester, N.H., film company MJM Productions, and scriptwriter Jefferson Dutton, of Londonderry, asked a U.S. District Court judge yesterday to stop CBS and 20th Century Fox from airing the premier of “The Brotherhood of Poland, New Hampshire” tomorrow night.

Alternatively, they want the judge to order CBS to air a disclaimer before, during and after the show stating it has no connection to their film.

They also want money damages, legal fees and copies of the television scripts so they can determine whether Kelley, creator of “Ally McBeal,” “Boston Public” and “The Practice,” has infringed their copyright.

“Our film ‘Brotherhood’ has little chance of becoming a commercial success while entertainment giants like CBS and Fox are using our trademark for a similar show based on similar themes and based in a similar location,” MacLeod said in a sworn statement accompanying the lawsuit.

Kelley Productions, CBS and Fox have called the claims “outrageous.”

“We believe that MJM’s claim that it has any monopoly on the use of the word ‘Brotherhood’ in film or television series titles is ludicrous and is unsupported by the law or the facts in this situation,” a spokeswoman for Kelley Productions said Sunday.

Robert Thompson, founding director of the Center for the Study of Popular Television at Syracuse University, said the filmmakers are unlikely to win their trademark claim, given the number of other movies with the word “Brotherhood” in the title (including a 1986 film with the same name).

“‘ER’ and ‘Chicago Hope’ were both shows that came out at the same time, played on the same night, and they were both about hospitals in Chicago, but there was no plagiarism or copyright infringement,” Thompson said.

But any national publicity they generate for their film through the lawsuit “is going to be 10 times what it had before,” he said yesterday.

“Any publicity is good publicity, especially since they’re the underdogs and they’re saying, ‘We did this first, and the big bad networks stole it from us,”‘ Thompson said.

An early episode of the TV show was shot in Plymouth in March and used more than 250 locals as extras.

Plymouth officials planned to hold a party to celebrate the pilot tomorrow night, although they recently learned that a different episode — not filmed in Plymouth — would be the first to air.

The show features the lives of three middle-aged brothers living in a small New Hampshire town. One is the mayor, one is the police chief, and the third has yet to find his calling. Some scenes apparently were shot in a diner.

“Brotherhood” explores the lives of five friends who have returned to their small New Hampshire town after college. It was shot at Mary Ann’s Diner in Derry.

It premiered last summer locally and got some favorable local media coverage. Late last year Warner Bros. asked for a television script based on the film, according to a sworn statement by MacLeod.

A month later, MacLeod learned of Kelley’s TV show from a local reporter who mistakenly called to congratulate him on selling his show to Hollywood, he said in the statement.

MacLeod said his lawyer contacted Kelley Productions and CBS with his concerns, but in June, CBS, Kelley and Fox instead asked a federal judge in Los Angeles to decide they weren’t infringing MJM’s trademark.

MacLeod asked the Los Angeles court to move the case to New Hampshire, but the judge is allowing both sides to present evidence on whether the case belongs there or not.

Susan Richey, a professor at Franklin Pierce Law Center who used to practice trademark and entertainment law in Los Angeles, said no matter where the case ends up, it’s very unlikely the court would stop CBS from airing the show, or even require it to air the disclaimer.

“The judge might conclude this disclaimer is a shot at free publicity,” she said.