IP Law Daily Dismissal of copyright suit against creator of Fox hit ‘Empire’ upheld
Wednesday, August 29, 2018

Dismissal of copyright suit against creator of Fox hit ‘Empire’ upheld

By George Basharis, J.D.

The Third Circuit affirmed a federal district court’s dismissal of copyright infringement claims by an individual who wrote and produced a three-episode television series titled Cream against the director and producers of the Fox television series Empire. The district court correctly determined that the two shows were not substantially similar as to their protected elements, including plot, characters, theme, mood, setting, and dialogue (Tanksley v. Daniels, August 28, 2018, Fisher, D.).

Plaintiff Clayton Prince Tanksley created a three-episode television series pilot titled Cream about an African-American record executive who ran his own hip-hop label. Tanksley obtained a copyright for his pilot and later pitched Cream to producer and director Lee Daniels during an event organized by the Greater Philadelphia Film Office, where writers and producers were given an opportunity to pitch their film concepts to a panel of entertainment industry professionals who acted as judges. Tanksley allegedly gave Daniels several DVD copies of Cream, along with a written script for the show.

Seven years after the Philadelphia event, Fox aired a pilot episode of a new television series created by Daniels titled Empire, which centered on an African-American record executive who ran his own music label.

Tanksley filed suit against Daniels and others involved in the creation and production of Empire. According to Tanksley’s complaint, the defendants infringed on his copyrighted work because Empire was "in many respects strikingly substantially similar" to Cream.

To state a claim of copyright infringement, a plaintiff must establish ownership of a valid copyright and unauthorized copying of protectable elements of the plaintiff’s copyrighted work. Proof of unauthorized copying can be found by direct evidence or by circumstantial evidence of access to the work and substantial similarity.

After a hearing in which it compared screenshots and video excerpts of the two shows, the district court concluded that Cream and Empire contained dramatically different expressions of plot, characters, theme, mood, setting, dialogue, total concept, and overall feel and therefore were not substantially the same. The district court then dismissed Tanksley’s complaint for failure to state a claim.

On appeal, Tanksley argued that the question of substantial similarity was too fact-intensive to be resolved at the pleading stage and that the district court erred in finding no substantial similarity between Cream and Empire as a matter of law.

Whether copyrighted and allegedly infringing works are substantially similar is usually a close question of fact; however, often no fact finding is required, and the question of substantial similarity may be resolved by courts at the pleading stage by a visual comparison of the works. The district court compared Cream and Empire and properly concluded that no additional evidence or expert analysis would be relevant to the question of substantial similarity.

After removing unprotected content from the works, such as general plot devices, the characters, theme, mood, setting, and dialogue of Cream and Empire were not similar. For example, Empire centered on the power struggles and opulent excesses of a powerful and wealthy family. The focal point of the plot was the succession of the father’s record label. By contrast, the main character in Cream ran a record label that was not particularly glamorous or high profile, and the plot centered on the main character’s diagnosis of a venereal disease.

The only similarity between the two shows was the "bare abstraction of an African-American, male record executive." No reasonable jury could find after comparing the two shows’ characters, setting, and storylines that the two works were substantially similar.

This case is No. 17-2023.

Attorneys: Mary E. Bogan (Bogan Law Group) for Clayton Prince Tanksley. Richard L. Stone (Jenner & Block) for Lee Daniels, Danny Strong, Twenty First Century Fox Inc. and Fox Network Group Inc.

Companies: Twenty First Century Fox Inc.; Fox Network Group Inc.

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