In copyright infringement action against creators of hit television series “Empire,” Ninth Circuit reverses in part dismissal of pro se plaintiff’s complaint with prejudice, holding that district court should have granted leave to amend.
Pro se plaintiff Jon Astor-White sued the creators of the hit television series “Empire,” alleging that they infringed a treatment that he created to pitch a series called “King Solomon,” about a powerful black record executive competing against a white record executive involved in organized crime. Following plaintiff’s filing of an amended complaint, defendants moved to dismiss for failure to state a claim. Plaintiff requested leave to further amend his complaint, but the district court denied the request on futility grounds, dismissing the complaint with prejudice.
In an unpublished memorandum, a divided Ninth Circuit affirmed the district court’s dismissal but reversed its denial of leave to amend and remanded the case to the district court with instructions to permit plaintiff the opportunity to allege additional facts regarding similarities between the works and defendants’ access to his treatment.
A concurrence, filed by Judge Kim McLane Wardlaw, criticized the district court’s decision as lacking precedent, observing that “our court has never affirmed the dismissal of a case alleging infringement of a literary work without discovery in a published opinion” and identifying only two cases outside the literary context affirming dismissal for lack of substantial similarity. It also criticized the lower court for focusing on the differences between the works at issue, rather than their similarities, noting that treatments are by their very nature underdeveloped and that differences between treatments and fully developed television shows based thereupon are to be expected. In this regard, the concurrence opined, expert testimony would have been useful: “Not many laypersons, much less judges, are trained in the process of developing a short term treatment into a fully developed television show.”
The concurrence further criticized the district court for not acknowledging the “revolutionary nature of Astor-White’s treatment at the time it was written” 11 years earlier, when, it observed, black lead characters were rare in television. Questioning the district court’s conclusion that further amendment was futile due to the ostensibly generic nature of plaintiff’s treatment, the concurrence stated that “judges have no particular expertise in determining what is and is not generic in cases like these, where the judge could not have seen a similar show at the time it was written. Discovery and the expertise of persons who understand the landscape of television at the time “King Solomon” was written would have greatly informed the decision as to substantial similarity.”
In a dissenting opinion, Judge Jacqueline Nguyen agreed with the district court’s denial of leave to amend, concluding that plaintiff could under no circumstances show defendants’ unlawful appropriation of his treatment. Applying the Ninth Circuit’s extrinsic test for unlawful appropriation, the dissent concluded that there were no protectable similarities between the works and that expert testimony would not, as the concurrence opined, be necessary. According to the dissent, the “overarching ideas” of a black record business mogul, the inner workings of the record business and its effects on his family were not protectable, nor were other purported similarities in the works’ plots, sequences of events, settings or characters. Expressing “concern that the majority’s failure to apply the extrinsic test will create confusion for the parties and the district court on remand,” the dissent concluded that because both works were already before the court, there were no additional facts that could change the outcome of the action, and it was unclear “how or why the district court should come to a different conclusion regarding unlawful appropriation.”