District court refused to dismiss infringement claims alleging creators of TV show “Empire” copied Cookie Lyon character from plaintiff’s memoir, concluding, among other things, that stories with female, African-American organized crime bosses are rare enough for copyright protection.

Plaintiff Sophia Eggleston sued Twentieth Century Fox, director Lee Daniels and others, alleging that the character of Cookie Lyon from the hit television series “Empire” is based on her life and her memoir “The Hidden Hand,” which Eggleston self-published in 2009. The book details her experiences with gangs, selling drugs, romantic relationships, and time in prison and includes revelations about her daughter’s kidnapping, her brother’s homosexuality and the murder of her two sisters. The memoir also tells how she became romantically involved with someone in the music industry who introduced her to famous musicians, and how she was convicted of voluntary manslaughter for killing a different romantic partner. Eggleston’s story also includes how she eventually redeemed herself and founded her own home health care company.

In her complaint Eggleston alleges that in 2011, she was introduced to screenwriter Rita Grant Miller and that Eggleston gave a copy of “The Hidden Hand” to Miller, who interviewed her at length. Miller allegedly told Eggleston that she would adapt “The Hidden Hand” into a screenplay and pitch the script to director Lee Daniels. Eggleston claims that during a pitch meeting, Miller gave Daniels a copy of “The Hidden Hand,” Miller’s adaptation or treatment of “The Hidden Hand,” and Miller’s interview notes.

Twentieth Century Fox Film Corp. debuted “Empire,” on Jan. 7, 2015. The television series, set in present-day New York City, chronicles the saga of the Lyon family’s struggle for control of their music and entertainment company, Empire Entertainment. The company was founded by Lucious Lyon and his ex-wife, Loretha “Cookie” Lyon, with money Cookie earned from her drug dealing operations. In the first episode, Cookie is halfway through serving a 30-year prison sentence, which she received after taking the fall for a drug deal gone wrong. Unexpectedly, Cookie gains release after 17 years and confronts Lucious, demanding her share of the company. The series chronicles the struggle for control of Empire Entertainment between Lucious, Cookie and their three sons: Andre, a married businessman with bipolar disorder; Jamal, a gay singer rejected by his homophobic father; and Hakeem, a talented but unfocused rapper.

In 2015, Eggleston filed a pro se complaint alleging that the television series “Empire,” and in particular the character of Cookie Lyon, were inspired by her memoir. Eggleston alleged copyright infringement and unlawful appropriation of her right to publicity in violation of Michigan common law. In her complaint, Eggleston listed 23 similarities between herself and Cookie Lyon. These include the fact that she and Cookie Lyon are both light-skinned African-American women who wear expensive clothing, led gangs, have placed hits on men, sold drugs, have gay family members and two family members who were murdered, have served prison sentences, and are known for their “vicious insults” and propensity to slap people. Moreover, Eggleston claimed that both she and Cookie Lyon have shielded others by stepping in front of a loaded gun, have endured the kidnapping or attempted kidnapping of one of their children, lost their lovers while in prison, and attacked their former lovers’ new lovers upon release from prison.

The defendants moved to dismiss, focusing exclusively on the allegations of substantial similarity. The defendants argued that any similarities are coincidental rather than substantial, and represent “unprotectable” biographical facts, ideas, stock themes, and elements commonplace in drug and violence stories. They also argued that Eggleston’s state law claim must be dismissed because she had not pleaded any facts alleging that she has a pecuniary interest or commercial value in her identity.

As the defendants did not dispute the allegation that Eggleston holds the copyright to “The Hidden Hand,” the district court turned to whether the defendants unlawfully copied any elements of her memoir. Similarly, as the defendants did not dispute that they had access to the copyrighted work for the purposes of their motion to dismiss, the district court looked to whether there was substantial similarity between the two works.

To determine whether the two works are substantially similar, the district court engaged in a two-step analysis. First, it filtered out elements of the work that are not original to the author. Second, the district court compared the works in question for substantial similarity. It conceded that many of the elements Eggleston alleges were copied by the defendants are elements typical to stories about those involved in drugs and violence. The district court noted, however, that the memoir features a light-skinned, African-American woman “in the dominant role as drug dealer, gang leader, and perpetrator of violence,” and that certain elements, such as having a gay family member, the experience of having a child kidnapped, the murder of two family members, the death of romantic partners while in jail, and shielding another person from a loaded gun, were “arguably original and substantially similar.” Based on these elements, the district court denied the defendants’ motion to dismiss the copyright infringement claims.

The district court dismissed her claim for the appropriation of her right to publicity in violation of Michigan common law, holding that Eggleston did not allege any facts establishing that she has a pecuniary interest or any commercial value in her identity. Lastly, Daniels and the other individual defendants sought dismissal on personal jurisdiction grounds, asserting that they lack minimum contacts with Michigan and particularly the Eastern District of Michigan. Eggleston argued that personal jurisdiction exists because the individual defendants have broadcast and sold “Empire” in Michigan through a distributor. The individual defendants countered that Eggleston’s argument consisted of factual misrepresentations supported by inadmissible hearsay. The district court pointed out that based on the information available, either the individual defendants caused “Empire” to be distributed in Michigan through a national or regional distribution contract or they were not necessarily responsible for “Empire” appearing in Michigan. The district court ordered the parties to conduct 30 days of jurisdictional discovery. Accordingly, it denied the individual defendants’ motion, but allowed them to renew their motion upon completion of discovery.