Addressing the issue of substantial similarity as a matter of law, the US Court of Appeals for the Third Circuit affirmed the district court’s dismissal of a copyright infringement case against the creator of the television show EmpireTanksley v. Daniels, et al.Case No. 17-2023 (3d Cir. Aug. 28, 2018) (Fisher, J).

Lee Daniels is the creator of the well-known television show Empire, which follows Philadelphia-born criminal-turned-music-executive Lucious Lyon and his dilemma over who will succeed him as head of the record label when he dies from ALS. Clayton Prince Tanksley is the creator of a three-episode television pilot called CreamCream’s main character is Winston St. James, who is the founder and owner of a record company in Philadelphia. The show documents St. James’s personal, family and professional problems, including health issues and an attempted takeover of his company.

Tanksley met Daniels in 2008 at the Philly Pitch, an event where aspiring writers pitch film ideas to entertainment professionals. Tanksley did not formally present Cream as his pitch, but he did discuss the show with Daniels one-on-one afterwards and provided Daniels with a DVD and script of the series. Seven years later, after Empire premiered on television in 2015, Tanksley sued Daniels (and others associated with Empire) for copyright infringement and other related claims. The district court found that the two shows were not substantially similar as a matter of law and granted defendants’ motions to dismiss for failure to state a claim. Tanksley appealed.

Tanksley raised two arguments on appeal: (1) that substantial similarity should not be resolved at the pleading stage, and (2) that the district court erred in finding no substantial similarity as a matter of law. The Third Circuit acknowledged that, although rare, “in recent years, several Courts of Appeals have . . . affirm[ed] dismissals under Federal Rule of Civil Procedure 12(b)(6) after finding no substantial similarity as a matter of law.” Doing so is appropriate, the Court reasoned, because courts may consider the complaint as well as “evidence ‘integral to or explicitly relied upon’ therein,” and additional fact-finding or discovery is typically unnecessary where the review requires only a visual comparison. In this case, the complaint included “dozens of side-by-side screenshots of each [show],” and no additional evidence or expert opinion was necessary (nor would have been relevant) to the assessment.

Addressing Tanksley’s second argument, whether the district court erred in finding no substantial similarity as a matter of law, the Third Circuit stressed the “critical, though often misunderstood, distinction” between substantial similarity with respect to copying as compared to substantial similarity with respect to material appropriation, both of which are often required for copyright infringement:

On the question of copying, the finder of fact may consider any aspect of the works that supports an inference of copying, even elements that are incapable of copyright protection. . . . By contrast, when assessing material appropriation, i.e., substantial similarity, only similarities in protectable expression may be considered.

Where, as here, the works contain both protectable and unprotectable elements, the Third Circuit assesses the substantial similarity of the protectable elements only. Here the Court concluded as a matter of law that “superficial similarities notwithstanding, Cream and Empire are not substantially similar.” For example, the Third Circuit noted that “the shared premise of the show—an African-American, male record executive—is unprotectable,” and therefore Tanksley’s copyright protection extended only to his particular expression of that idea. Comparing the characters, the Court concluded that the particular expressions of this character type were not substantially similar. Even in considering the protectable elements of Cream, the Court stated that no reasonable juror could find the works substantially similar.