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IP/Entertainment Case Law Updates

Panton v. Strong

District court dismisses copyright infringement claims against the creators of the hit television series “Empire,” finding that plaintiff failed to sufficiently plead defendants had access to his screenplay and that the works did not share any similarities in any protectable elements.

Robert Panton brought this copyright infringement action against Fox Studio and individuals involved in the production of the show “Empire,” alleging that the first season of the popular television series infringed his screenplay titled “Can You Cross Over.” Panton also sought declaratory judgment naming him as a co-creator of “Empire.” Two of the individual defendants, director Debbie Allen and creator Lee Daniels, moved to dismiss Panton’s amended complaint. The district court held that Panton failed to plead that defendants had access to “Can You Cross Over” and that Panton’s screenplay was not substantially similar to “Empire.” Because Panton had failed to plead a claim for copyright infringement as a matter of law, his claim for declaratory judgment failed as well, and the court dismissed Panton’s claims with prejudice.

Panton’s work, “Can You Cross Over,” is a two-hour screenplay about a man named Donneekie Brown who rose from a life of crime as a drug lord and invested in a record label in order to live a legitimate life. Panton claimed that he wrote the screenplay in 1993 and that, while incarcerated in 2003, he sent the screenplay to another inmate to forward it to Debbie Allen for sale or production inquiries as part of a prison creative writing program. As a claim for copyright infringement requires that a plaintiff plead facts showing that the creators of defendants’ work had access to plaintiff’s work, the court examined whether Panton had sufficiently pleaded that the creators of “Empirehad reasonable access to “Can You Cross Over.” 

Stating that a “‘bare possibility’ of access or ‘mere speculation or conjecture’ is legally insufficient” to establish access, the court determined that Panton failed to plead facts showing that even if the other inmate had given the screenplay to Debbie Allen, she had then provided it to the creators of “Empire” a decade later when the show was created, or that she contributed ideas to the creators before they created “Empire.” The court also held that it could not infer defendants’ access to the screenplay because there was no overlap between the intermediary’s involvement in a prison creative writing program and the later creation of “Empire.”

The court applied the extrinsic test to determine whether the protectable elements of Panton’s screenplay are substantially similar to the corresponding elements of “Empire,” comparing the plot, characters, setting, dialogue, mood, pace, sequence of events and themes of each work. Panton claimed that the works share a similar plot in that they are about a “black male drug dealer and a black gangster girl, making money from drugs and investing in a music studio and record label, to legitimize their life.” Not only did the court find this to be a mischaracterization of “Empire,” which focuses more on the conflict among the Lyon family than on the drug trade, but the court also held that even if Panton’s characterization of the similarities between the works’ plots were true, such a general idea is not protectable under copyright. The court also found that the Lucious Lyon character in “Empire” is different from the Donneekie character in “Can You Cross Over” in a number of ways, and the mere fact that both characters are black men who rise from a life of crime to become successful is too general to indicate substantial similarity. 

As to the settings of the works, the court stated that the drug-related scenes and opulent homes found in both works are non-protectable scenes a faire that naturally flow from stories about drug dealers who become rich. Panton did not allege any instances of extended dialogue that were similar between the two works, relying only on the shared usage of words such as “pimp,” which the court deemed not copyrightable. The court also determined that the moods of the two works are not similar, finding that “Empireis a glamorous nighttime soap opera centering on musical performances, while “Can You Cross Over” is a dark and violent crime drama. The pace of the two works differs because, the court stated, “Empire” is a television series spanning several months with occasional flashbacks into the past, whereas “Can You Cross Over” is a two-hour screenplay presenting a more linear story about Donneekie’s life that spans a yearlong period. The court did not find any similarity in the sequence of events in the two works because Panton did not allege any such similarities. And finally, as to the themes of the two works, the court stated that the theme of a criminal crossing over to a legitimate life is a non-protectable stock theme, and also noted that “Empire” differs from this theme because it takes place after Lucious Lyon has already become a legitimate music mogul and does not focus on his rise from a life of crime. Finding no similarities between the works, the court held that the works are not substantially similar as a matter of law.

Because Panton could not establish a claim for copyright infringement, the court held that he was not entitled to a declaratory judgment naming him as a co-creator of “Empire.” The court also rejected Panton’s argument that he is a joint author of “Empire,” finding that his claim that “Empire” secretly infringed on the copyright in his screenplay undermined his joint authorship argument because there could therefore be no objective intent to create “Empire” as co-authors and because Panton had no creative control over “Empire.”

The district court determined that it would be futile to allow Panton to amend his complaint because the contents of the works could not be changed by simply amending the allegations in the complaint. Accordingly, the court granted the moving defendants’ motions to dismiss with prejudice. Since the same issues presented in these motions would apply to the non-moving defendants, the court also held that those defendants were entitled to dismissal of the claims against them, and dismissed the case with prejudice in its entirety.

Summary prepared by David Grossman and Kyle Petersen