Friday, August 3, 2018
Court Resuscitates Action Claiming TV Show Breach Copyright
Three Members of Panel Agree Dismissal Was Appropriate; Two Say District Judge Erred in Disallowing Amendment
By a MetNews Staff Writer
Logo for television series, Empire
The claim of a writer/producer that creators of the hit Fox television show Empire copied his earlier treatment for a proposed series was properly dismissed, but he should have been granted leave to amend, the Ninth U.S. Circuit Court of Appeals has held.
A memorandum opinion was filed Wednesday, signed by Circuit Judges Kim M. Wardlaw and John B. Owens. Wardlaw wrote a separate concurring opinion, while Circuit Judge Jacqueline Nguyen concurred in part and dissented in part.
The case was brought by Jon Astor-White, who claimed that his copyrighted script for King Solomon which he circulated among Hollywood professionals in 2007, about an African-American music industry mogul, was copied by the defendants for the first season of the dramatic series Empire, which shares that same basic premise and first aired in 2015. A television treatment is a short document setting forth the characters, plot, and episode ideas for a new program.
The memorandum opinion says that Astor-White’s complaint fails to show that the defendants violated his copyright. It points out, however, that with an amended complaint he could possibly cure that defect by showing either a striking similarity, or showing a substantial similarity and access by the defendants to his work.
“Astor-White’s second amended complaint could focus on the similarities, particularly important where the author of a treatment alleges infringement by a now full season-long series…,” the memorandum opinion says. “And to allege access, as Astor-White’s briefing demonstrates. Astor-White could plead facts describing a plausible chain of events linking the King Solomon treatment to defendants.”
Wardlaw concurred in greater detail, noting that at the time Astor-White circulated his script, African-American characters on television were largely relegated to situation comedies. That has since changed, but King Solomon was written “on the revolution’s precipice,” she said, adding:
“The district court dismissed this claim on the basis that the storyline in King Solomon and its many similarities with Empire were generic. However, 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.”
“The complaint was prepared pro se by Mr. Astor-White himself: the district court judge performed the entire substantial analysis himself. in chambers, without the benefit of even a hearing, much less discovery and an expert witness.”
Nguyen concurred in affirming the dismissal, but was less impressed by the similarities between the two works. She agreed with U.S. District Judge Percy Anderson of the Central District of California that no amendment could cure Astor-White’s complaint.
The judge explained that copying protected expression has two distinct aspects: “1) actual copying that is 2) unlawful.” The majority, she said, had focused exclusively on the first aspect, and neglected to apply the extrinsic test of whether such copying had been unlawful.
Nguyen said Anderson did a complete analysis “and correctly concluded that the two works are not substantially similar as a matter of law.” She added:
“The overarching ideas of ‘a Black Record Business Mogul and his family’ and ‘the inner-workings of the billion dollar record business, and [its] effects on the  family’ are common between the two works. In fact, this is the main similarity. This idea is not protectable.”
“The majority states that the ‘second amended complaint could focus on the similarities’ between the two works…But what additional facts could change the outcome here? Both works were before the district court (as they are now before us) for review. The extrinsic test requires us to review the works, filter out unprotectable elements, and then decide as a matter of law whether the remaining similarities are sufficiently substantial to allow Astor-White to proceed with his copyright infringement claim. Yet the majority does not engage with how or why the district court should come to a different conclusion regarding unlawful appropriation the second time around, nor do I think it could.”
The case is Astor-White v. Strong, No. 16-55565.
The fifth season of Empire is set to begin Sept. 26. Astor-White is only claiming that the first season violated his copyright.
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