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IP/Entertainment Case Law Updates

Astor-White v. Strong

In copyright infringement action against creators of hit television series Empire, district court dismisses plaintiff’s third amended complaint without further leave to amend, finding that, even on fourth try, plaintiff failed to adequately plead that defendants had access to his treatment or that works shared similarities in any protectable elements.

Plaintiff Jon Astor-White sued the creators of the hit television series Empire, alleging that they infringed a treatment that he created to pitch a series called King Solomon, about a powerful black record executive competing against a white record executive involved in organized crime. After three sets of counsel and four attempts to draft a complaint adequately stating a viable claim of copyright infringement, the court dismissed the third amended complaint without leave to amend and dismissed the action with prejudice. 

Plaintiff, appearing pro se, filed his first amended complaint as a matter of right. Defendants moved to dismiss for failure to state a claim. Plaintiff retained counsel and requested leave to further amend his complaint, but the district court denied the request on futility grounds, dismissing the complaint with prejudice.   

In an unpublished memorandum, a divided Ninth Circuit affirmed the district court’s dismissal but reversed its denial of leave to amend and remanded the case to the district court with instructions to permit plaintiff the opportunity to allege additional facts regarding similarities between the works and defendants’ access to his treatment. (Read our summary of the Ninth Circuit’s decision here.)

Following the Ninth Circuit’s mandate, and aided by new counsel, plaintiff filed a second amended complaint. On defendants’ motion to dismiss, the district court found that plaintiff’s second amended complaint failed to adequately plead access or substantial similarity. As in the first amended complaint, the second amended complaint alleged that the actor Richard Roundtree was one of only three individuals with whom plaintiff shared his treatment.  Plaintiff’s new allegations included the fact that both Mr. Roundtree and one of the defendants were involved in the same 2016 television program. The district court found this insufficient to plausibly allege that defendants had access to King Solomon when they created Empire

In the second amended complaint, plaintiff also set forth three new alleged similarities between the two works: (1) comparing “King’s youngest child” who “gets caught up in the fast life” and dates an older man with “Lucious’ youngest child Hakeem,” who “becomes consumed by fame and wealth and dates an older woman”; (2) a character in each work who is the unexpected child of a main character; and (3) a party in King Solomon and a corporate board meeting in Empire, each of which is “crashed” by characters with secrets or leverage over the main characters. These purported similarities, according to the district court, were insufficient to state a viable claim for copyright infringement, and did not cure the deficiencies that the court had identified when it dismissed the first amended complaint. Nonetheless, the court granted plaintiff further leave to amend. 

Aided by his third team of legal counsel, plaintiff filed a third amended complaint. On defendants’ motion to dismiss, the district court concluded, as it had with the first and second amended complaints, that plaintiff failed to “allege sufficient similarities between the protectable elements of the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” and, therefore, failed to state a viable claim for copyright infringement. The court also confirmed the appropriateness of this determination at the pleading stage. Finally, the court concluded that further leave to amend would be futile, given that plaintiff had not been able to cure the deficiencies in his first amended complaint despite two previous opportunities and two separate teams of legal counsel. Accordingly, the district court dismissed plaintiff’s third amended complaint without leave to amend and dismissed the action with prejudice.

Summary prepared by Melanie Howard and Sara Slavin

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