Third Circuit affirms dismissal of plaintiff’s copyright infringement claim, finding that district court correctly decided issue of substantial similarity at pleading stage and that, as matter of law, plaintiff’s show “Cream” is not substantially similar to television series “Empire.”

Plaintiff Clayton Tanksley created a three-episode pilot for a television show called “Cream,” about an African-American executive who runs a hip-hop label. According to the complaint, following an event in Philadelphia called the “Philly Pitch,” plaintiff told Lee Daniels about “Cream” and later provided him with a DVD and script of the series. Daniels later created the smash Fox Television series “Empire,” which follows the life of an African-American record executive who runs his own music label. Plaintiff sued Fox Network Group Inc., Twenty-First Century Fox Inc., Lee Daniels and various others, arguing that “Empire” infringed on his copyright in “Cream.” The district court dismissed the case, finding there was no substantial similarity between the two shows. Plaintiff appealed, arguing that the question of substantial similarity is too fact-intensive to be resolved at the pleading stage, and that the court erred in finding no substantial similarity between the two series as a matter of law. The Third Circuit affirmed, finding that the determination of “substantial similarity” was properly resolved at the pleading stage and that “no reasonable jury, properly instructed, could find that the two works are substantially similar.”

On the question of whether the issue of “substantial similarity” was properly resolved at the pleading stage, the appeals court noted that courts have recently affirmed dismissals of copyright infringement claims under Rule 12(b)(6) based on findings of no substantial similarity as a matter of law. Because courts can consider evidence integral to or explicitly relied upon in the complaint at the pleading stage, including the copyrighted and allegedly infringing works, the determination of the substantial similarity issue may require only a visual comparison of the works. Plaintiff argued that the district court erred in relying solely on the works in rendering its decision without considering witness testimony, documentary evidence or expert analysis. The Third Circuit disagreed, finding that this evidence would be irrelevant considering the standard for determining substantial similarity is “how the works would appear to a layman viewing [them] side by side,” and that numerous courts have rejected the usefulness of experts in answering this question.

Based on a comparison of the shows’ characters, settings and storylines, the Third Circuit held that the two shows are not substantially similar as a matter of law. In doing so, the court found that the shared depiction of an African-American, male record executive is unprotectable. Furthermore, the court held that “the particular expressions of this [unprotectable] idea are not substantially similar.” The court also found that “with regard to plot, the similarities between the shows likewise extend no f[u]rther than the bare abstraction of an African-American, male record executive.” Finally, the court affirmed the dismissal of plaintiff’s derivative claims and the determination that further amendment of the complaint would prove futile.