Shortly after the 2015 debut of the hit Fox Television show Empire, Clayton Tanksley sued the studio, distributor, producer and creators of Empire for copyright infringement and related claims in the United States District Court for the Eastern District of Pennsylvania. Tanksley’s claims stem from an alleged 2008 meeting with Empire’s creator and producer, Lee Daniels during a film competition sponsored by the Greater Philadelphia Film Office called Philly Pitch. (The Film Office also was sued by Tanksley.) Following the event, Tanksley claims to have discussed with Daniels a three episode television series he created and copyrighted called Cream, which was about an African American record executive who runs his own hip-hop label. He also claimed to have provided Daniels with a DVD and script for the Cream series. Tanksley’s complaint alleged that Cream and Empire are “strikingly substantially similar” in many respects, including the main and supporting characters, scenes and the overall themes of both works.
Copyright law protects the expression of ideas but not the ideas themselves. Thus, in order for a plaintiff to prevail in a copyright infringement action he must demonstrate substantial similarity in the protected expression between the two works and not merely the fact that they share similar ideas or themes. In dramatic works such as Empire and Cream, scènes à faire or plot elements that flow predictably from a general idea are unprotected. For example, in “a film about a college fraternity … parties, alcohol, co-eds, and wild behavior would all considered scènes à faire and not valid determinants of substantial similarity.” Tanksley v. Daniels, et al., No. 17-2023, p. 16, — F.3d – (3d. Cir. 2018).
Under that standard, the defendants moved to dismiss the complaint, arguing primarily that the two works were not substantial similar in protected expression. In deciding defendants’ motion, the court performed a side-by-side analysis of Empire and Cream to determine whether a lay-observer would believe that the copying was of protectable aspects of Tanksley’s series. The trial court granted the motion to dismiss, finding that the two works contain “dramatically different expressions of plot, characters, theme, mood, setting, dialogue, total concept and overall feel.” And while the general idea of the two series revolved around African American music moguls, that was not protectable under copyright law.
Tanksley appealed to the Third Circuit raising primarily two arguments: (1) the question of substantial similarity is too fact-intensive to be resolved on a motion to dismiss; and (2) the trial court erred in finding no substantial similarity between Empire and Cream. As to the first argument, the court determined that certain works, including dramatic works, may be evaluated in a side-by-side comparison at the motion to dismiss stage and dismissed if “no trier of fact could rationally determine the two works to be substantially similar.” The appellate court rejected plaintiff’s argument that the trial court erred in rendering its decision without the benefit of witness testimony, documentary evidence or expert analysis holding this was irrelevant to the dispositive question of how the two works would appear to a layman viewing them side by side.
As to the second argument, the Third Circuit determined that the trial court properly concluded that there was no substantial similarity of protected expression between Empire and Cream. As the court concluded, aside from superficial, general similarities between the two shows, they were not substantially similar as a matter of law. “The shared premise of the shows – an African-American, male record executive – is unprotectable. These characters fit squarely within the class of ‘prototypes’ to which copyright protection has never extended.” Thus, the Third Circuit agreed with the trial court that as to the protectable expression of plot, characters, theme, mood, setting, dialogue, total concept, and overall feel, no reasonable jury could conclude that Empire and Cream were substantially similar.