District court dismisses plaintiffs’ claim that Starz television series “Power” infringed their copyrights in two novels, finding that plaintiffs’ allegations of access were insufficient, and “Power” was not substantially similar in either in plot or characters to plaintiffs’ Tribulation book series.

Plaintiff Larry Johnson, the author of the novel Tribulation of a Ghetto Kid and its sequel, Tribulation of a Ghetto Kid: Part II, and his co-plaintiff, editor Blake Keller, sued Starz, executive producer Curtis “50 Cent” Jackson and others for copyright infringement, fraud and breach of contract, alleging that defendants infringed on Johnson’s copyright in the Tribulation books by adapting protected elements of the novels into the television series “Power.” On defendants’ motion for judgment on the pleadings, the court dismissed the federal copyright claim and declined to exercise jurisdiction over the state law claims for fraud and breach of contract.

In order to establish copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Copying, in turn, may be established by proof that (1) the defendant had access to the work, and (2) the works are substantially similar in their protective elements.

To prove access, a plaintiff must show beyond “mere speculation” that there was more than a “bare possibility” that the defendant had viewed the plaintiff’s work. Here, the district court found that the plaintiffs had not met their burden of pleading more than a “bare possibility” that defendants had access to Tribulation. Although one of the defendants, Nikki Turner, was both Johnson’s agent and an employee of Jackson’s book company, the district court said that the plaintiff had insufficiently alleged facts demonstrating the requisite chain of events: “Plaintiffs’ bare allegations that [Turner] gave [Jackson] a copy of Tribulation who then shared the work with co-producers [10] years later are merely speculative.”

The district court also concluded the book and the Starz show were not substantially similar either in plot or characters. Plot-wise, both works feature drug dealers from the inner city transitioning into legitimate business, but the district court concluded that “[t]hey tell materially different stories.” Tribulation follows the lives of several characters after three murders that stemmed from a gambling dispute, while “Power” tells the story of a drug kingpin who tries to become a legitimate nightclub owner. The court explained that “[t]he similarities identified by [p]aintiffs merely arise from the works’ general shared premise and are not protected by copyright law.”

Nor did the court find that the characters in the two works shared any significant similarities under copyright law. The plaintiffs had alleged that Prince, a supporting character in Tribulation, and Ghost, the protagonist of “Power,” were similar in that both are smart, wear the same hairstyle and goatee, and desire to leave the drug trade. The court found that, beyond these nondistinctive similarities, the characters are nothing alike, noting that Prince had retired from the drug trade and was loyal to his friends and deeply in love with his girlfriend. By contrast, Ghost still controlled his drug empire, neglected his family and friends, and pursued an extramarital affair. The court also explained that plaintiffs had failed to show that any of the other characters in the two works shared similarities protectable under copyright law.

After granting the defendants’ motion for judgment on the pleadings, the federal court declined to exercise supplemental jurisdiction over the plaintiffs’ state law claims.