USDC, E.D. Virginia, March 29, 2018

District court dismisses writer’s claim that film studio copied his unpublished manuscript in creating the hit television series “Empire,” granting motion to dismiss copyright infringement claim.

Plaintiff Timothy J. Levi sued Twentieth Century Fox Film Corporation, producer Lee Daniels and writer Danny Strong for copyright infringement, alleging that the hit television series “Empire,” which premiered on Fox in 2015, copied protectable elements of his unpublished manuscript titled “Unity Incorporated: The Mastermind,” which he registered with the U.S. Copyright Office in 2008. Levi also asserted a copyright infringement claim against Robert Walker, whom he allegedly contacted for assistance with publishing his manuscript. Levi claimed that, while in prison in 2007, he contacted Walker and transmitted a copy of the manuscript to him, but that, four months later, he asked his mother to collect the copy from Walker. Walker, Levi alleged, made a copy during that intervening period to keep in his possession without Levi’s permission.

The court dismissed Levi’s claims against Daniels and Strong for lack of personal jurisdiction, but permitted him to file an amended complaint as to Fox and Walker. In his amended complaint, Levi claimed that Walker violated 17 U.S.C. § 106(1) by making an unauthorized copy of his manuscript, and that Fox violated 17 U.S.C. § 106(5) by displaying his work publicly without authorization. Fox and Walker separately moved to dismiss. The court granted Fox’s motion, but denied Walker’s.

As to Fox’s motion, the court held that Levi failed to plead facts that could support an inference of access. Levi, the court observed, admitted he could not prove that Fox had access to his manuscript and instead argued that access must be inferred on the basis that the works are “strikingly similar.” Noting that it was unclear whether the Fourth Circuit had adopted the “strikingly similar” doctrine and declining to rule on the issue, the court held that the works are not substantially similar, much less strikingly similar. In doing so, the court applied a two-part test that requires plaintiffs to show that the works are both “extrinsically” and “intrinsically” similar. To satisfy the “extrinsic” similarity prong, the court noted, the works’ protectable elements must share “substantially similar ideas,” e.g., theme, plot, mood, setting, pace and sequence, while to satisfy the “intrinsic” prong, the works must be substantially similar in the expression of those ideas.

Levi’s claim, the court concluded, failed the extrinsic prong. The court held that the purportedly shared themes of poverty, violence and overcoming of adversity were unprotectable “common themes” that could not support a finding of substantial similarity. As to the works’ plots, the court held that the four elements Levi identified — a friendship among three men, one of whom owns a record company; the main character’s prior murder of four people; the main character’s luring of one friend to an isolated area to murder him; and the subsequent testimony by the remaining friend at a federal trial following discovery of the murder — constituted “stock themes not protected by copyright law.” Similarly, the court deemed the works’ settings, which Levi described as “East Coast urban environments,” too broadly characterized to rise to the level of substantial similarity. Finally, the court concluded that purported character similarities were mere “basic human traits” — e.g., race, sex and occupation — too general or common to warrant copyright protection. Although Levi included in his complaint a separate list of “scenes and situations” allegedly common to both works in a further attempt to plead infringement, the court rejected such “random, scattered similarities” as unprotectable scenes a faire.

The court held, however, that Levi plausibly alleged copyright infringement as against Walker, having pled both that he owned the copyright in “Unity Incorporated” and that Walker copied his manuscript without permission.