Two New Hampshire filmmakers want the CBS fall show "The Brotherhood of Poland, New Hampshire" to get out of town.
Michael MacLeod, his Manchester film company MJM Productions, and scriptwriter Jefferson Dutton, have sued television producer David E. Kelley, claiming he stole the show's name, theme and setting from their film "Brotherhood."
MacLeod and Dutton asked a federal judge Monday to stop CBS from airing Kelley's pilot in New Hampshire on Wednesday night, or require the network to air a disclaimer stating it has no connection to their film.
"That would certainly be good free advertising for you, wouldn't it?" U.S. District Judge Joseph DiClerico said. He promised to rule Tuesday.
A lawyer for MacLeod and Dutton said Warner Brothers was interested in making a film or television show based on "Brotherhood" until Kelley's proposed TV show was announced early this year.
Then people began e-mailing MJM Productions, asking if they could work on "The Brotherhood of Poland, New Hampshire," in the mistaken belief it was based on "Brotherhood," lawyer Mark Schonfeld said.
The makers of "Brotherhood" 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," borrowed from their plot, characters or dialogue.
Both shows deal with the lives of several men in a small New Hampshire town.
But a lawyer for Kelley Productions, CBS and 20th Century Fox said the resemblance ends there: "Brotherhood" is about young men returning home after college and "bonding," while the TV pilot is about three middle-aged brothers having mid-life and family problems.
Lawyer Will Glahn also argued the word "brotherhood" could never be a trademark because it has been used in numerous film titles (including a 1986 film by the same name).
Glahn said the number of people likely to confuse the film with the television show was infinitesimal, given that "Brotherhood" has never been shown publicly in New Hampshire.
On the other hand, the harm to CBS would "sweep way beyond New Hampshire" if it had to block the show from affiliates in Boston, Burlington, Vt., and Portland, Maine, he said. There is no CBS affiliate in New Hampshire.
An early episode of Kelley's show was shot in Plymouth in March, using more than 250 locals as extras.
Plymouth officials planned to hold a party to celebrate the pilot Wednesday night, although they recently learned that a different episode -- not filmed in Plymouth -- would be the first to air.
MacLeod learned about Kelley's pilot in January, six months after he finished his film, and he and his lawyer contacted Kelley Productions and CBS asking them to change the title of their show.
Kelley refused, and he and CBS sued in federal court in Los Angeles in late June, asking a judge to declare they had done nothing wrong.
MacLeod asked the Los Angeles court to move the case to New Hampshire. That court set a hearing for November, and MacLeod turned to the New Hampshire court for a quicker ruling.
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