By Thomas Long, J.D.
An author of a four-page treatment describing a concept for a television show failed to state plausible copyright infringement claims against the producers and the creators of the popular musical drama television series “Empire,” the federal district court in Los Angeles has decided (Astor-White v. Strong, March 28, 2016, Anderson, P.). The complaining author failed to allege facts showing that the defendants could have had access to his work or that protectable elements of the respective works were substantially similar.
Jon Astor-White wrote a treatment for a show called “King Solomon,” which described a concept for a television series centered on the story of a recording industry mogul and his family. The treatment consisted of one page of suggested actors for the key roles and little more than three pages describing the characters, their relationships, and some plot details.
The defendants’ drama series, “Empire,” chronicled the struggles of Lucious Lyon, a rapper and music mogul who had been a drug dealer. In the United States, “Empire” is currently aired on the Fox network.
Astor-White sued the defendants for copyright infringement. The defendants moved to dismiss, contending that Astor-White failed to allege facts showing that the defendants had access to his treatment and that he failed to state a viable claim because the treatment and “Empire” were not substantially similar in ways protected by the Copyright Act.
Access. Astor-White alleged that he provided his treatment to only three individuals, none of which were involved in the creation of “Empire” or otherwise associated with the defendants. Astor-White asserted no facts supporting an inference that the defendants had direct access to the work or even that the work was widely disseminated. The failure to allege facts that plausibly established even a “bare possibility” that the defendants had access to the copyrighted work was fatal to the infringement claim, the court said.
Substantial similarity. The defendants asserted that Astor-White’s treatment and “Empire” were not substantially similar, as a matter of law. Therefore, the court’s analysis was limited to the “extrinsic” test for substantial similarity, focusing on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in the two works. Unprotectable elements were then filtered out.
With respect to plot, sequence of events, and theme, Astor-White’s skeletal treatment provided very little detail, the court said. What detail was provided had very little in common with the story of “Empire.” Allegedly shared themes—for example, music, family, extreme wealth, and a black-owned recording label—were not well-developed in the treatment. The theme arose naturally from the premise and were developed in different ways in the respective works, according to the court. Important themes in “Empire”—such as familial conflict, intergenerational succession, homophobia and sexism, and mental illness—were either absent from Astor-White’s work or were explored in far more complex ways in “Empire.”
Astor-White contended that many characters in both works were similar. However, the court pointed out several differences between the characters, while again noting that Astor-White’s treatment did not contain much detail.
Astor-White’s treatment was set in Hollywood, whereas “Empire” took place in New York. Any similarities in the settings that flowed from the fact that the stories both involved an entertainment mogul living a lavish lifestyle were derived from that unprotectable idea. Moreover, Astor-White’s treatment did not contain dialogue, so a comparison could not be made on that point.
Ultimately, the court concluded that the works were not substantially similar, and that granting Astor-White leave to amend his pleadings would be futile. Therefore, the motion to dismiss was granted.
The case is No. 2:15-cv-06326-PA-RAO.
Attorneys: M Candice Bryner (M Candice Bryner Law Offices) for Jon Astor-White. Linda M. Burrow (Caldwell Leslie and Proctor PC) for Daniel William Strong a/k/a Strong.
MainStory: TopStory Copyright CaliforniaNews
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