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From Intellectual Property Law Daily, May 2, 2017

Fox’s hit show ‘Empire’ not copied from series pitched to co-creator Lee Daniels

By Cheryl Beise, J.D.

The federal district court in Philadelphia has dismissed copyright infringement and tort claims filed by an individual who wrote and produced a three-episode television series titled Cream, against various individuals and entities involved in the creation, production, and marketing of the television series Empire, airing on the Fox television network. The individual’s direct and contributory copyright claims were dismissed because Cream and Empire were significantly different in their protected elements, including plot, characters, theme, mood, setting, and dialogue. The individual—who allegedly pitched Cream to Empire co-creator Lee Daniels during an event sponsored by the Greater Philadelphia Film Office (GPFO)—also failed to state negligence and misrepresentation claims against Daniels, the GPFO, and its director (Tanksley v. Daniels, April 28, 2017, Slomsky, J.).

Plaintiff Clayton Prince Tanksley wrote, filmed, and produced a three-episode television series titled Cream, about an African American man "who has overcome a disadvantaged … past to achieve financial success in the music industry, only to be exploited by those closest to him." Tanksley obtained a copyright registration for Cream in September 2005. In April 2008, Tanksley attended Philly Pitch, 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. Writer/producer Lee Daniels participated as one of the judges. Tanksley pitched a different work to the judges, but claimed that he and Daniels privately met and discussed Cream. Tanksley allegedly gave Daniels several DVD copies of Cream, along with a written script for the show.

In January 2015, Fox aired a pilot episode of its new television series titled Empire, which features the struggles of Lucious Lyon, a rapper and former drug dealer who founded one of the world’s leading media companies, Empire Entertainment, with his ex-wife. Lee Daniels and Danny Strong are the creators of Empire.

In 2016, Tanksley filed suit against Daniels, Strong, and various entities involved in the creation, production, and marketing of Empire (the "Fox Defendants"). He also sued the Greater Philadelphia Film Office (GPFO) and its Executive Director, Sharon Pinkenson. Tanksley alleged that Daniels and Strong surreptitiously took his copyrighted work Cream and used it to create Empire. Before the court were the defendants’ motions to dismiss Tanksley’s second amended complaint (SAC) for failure to state a claim.

The court granted the defendants’ motions, finding that Tanksley failed to plausibly allege claims for direct or contributory copyright infringement under the Copyright Act or tort claims under Pennsylvania common law.

Direct copyright infringement. Tanksley alleged that the Fox Defendants directly infringed on his copyrighted work Cream by producing the television series Empire. 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.

The Fox Defendants did not contest that Tanksley held a valid copyright for Cream, and that he adequately pleaded access. Rather, they contended that the two works were not substantially similar in plot, characters, theme, mood, and setting. To determine whether two works are substantially similar, a court compares the allegedly infringing work with the original work, and considers whether a lay observer would believe that the copying was of protectable aspects of the copyrighted work.

Cream is a three-episode television show that follows the trials and tribulations of Winston St. James, an African-American hip-hop mogul who operates a record label called Big Balla Records. The court described Empire as a television soap opera reveling in the intrigue, power struggles, and opulent excesses of a powerful and wealthy family—the Lyons.

The court found that the plots, characters, theme, mood, setting, and dialogue of Cream and Empire works were not similar. General plot devices such as flashback scenes, female-female altercations, same-sex relationships, and secret parentage were not protectable elements of Tanksley’s copyright. The shared theme of the works—soap opera dramas that "focus on an African-American male who has overcome a disadvantaged/criminal past to achieve financial success in the music industry only to be exploited by those closest to him—was common and not protectable. Similarly, mood involving "regular musical interludes" are nothing new to film. As for setting, Empire is based in New York City, with flashbacks to Philadelphia, whereas Cream is set entirely in Philadelphia. Finally, Tanksley could not point to any dialogue that was similar.

The court concluded that Cream and Empire contained dramatically different expressions of plot, characters, theme, mood, setting, dialogue, total concept, and overall feel. Therefore, Tanksley failed to plausibly state a claim for copyright infringement.

Contributory copyright infringement. Tanksley’s contributory copyright infringement claims failed because he did not plausibly allege that any third party directly infringed his copyrighted work. His contributory infringement claims against GPFO and Pinkenson additionally fell short because Tanksley did not allege facts showing that they "materially contributed to" or "induced" the alleged infringement or even that they knew that Daniels or the other Fox Defendants infringed or would infringe Cream.

Tort claims. Tanksley’s negligence claims against GPFO and Pinkenson was preempted by the Copyright Act, according to the court, because they covered the same subject matter as his contributory copyright infringement claims and lacked any extra element to avoid preemption. The gist of Tanksley’s allegations in both claims was that GPFO and Pinkenson failed to protect Tanksley’s copyrighted work from misappropriation by the judges at Philly Pitch and therefore contributed to the alleged infringement, negligent misrepresentation, or intentional representation. Tanksley’s negligence claim further failed on its merits because Tanksley identified no source of an alleged duty GPFO and Pinkenson owed, such as preparing releases or taking other measures, to protect his copyright from infringement by third parties.

Tanksley’s claims for intentional and negligent misrepresentation against Daniels were dismissed because Tanksley failed to plead facts demonstrating that Daniels made any misrepresentation of past or present material fact. Daniels’s alleged statement that he "might well be disposed to proceed" in Cream’s development was not a misrepresentation of fact. Tanksley also failed to identify any duty Daniels owed him.

The case is No. 2:16-cv-00081-JHS.

Attorneys: Mary Elizabeth Bogan (Bogan Law Group) for Clayton Prince Tanksley. Andrew J. Thomas (Jenner & Block, LLP) for Lee Daniels and Lee Daniels Entertainment.

Companies: Lee Daniels Entertainment; Danny Strong Productions; Twenty-First Century Fox, Inc.; Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corp.; Twentieth Century Fox Television, Inc.; Twentieth Television, Inc.; Twentieth Century Fox International; Twentieth Century Fox International Television, LLC; Twentieth Century Fox Home Entertainment, LLC; Fox Networks Group, Inc.; Fox Broadcasting Company; Fox Television Stations, Inc.; Fox Digital Media; Fox International Channels; Greater Philadelphia Film Office

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