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Astor-White v. Strong

In copyright infringement action against creators of hit television series Empire, Ninth Circuit affirms district court’s decision that, after three opportunities to amend his complaint, plaintiff was still unable to plausibly allege that defendants copied or unlawfully appropriated any protectable expression from his television series treatment.

Plaintiff Jon Astor-White sued the creators of the hit television series Empire, alleging that they infringed his copyright in a treatment that he created to pitch a proposed television series called King Solomon, which was about a powerful Black record executive competing against a white record executive involved in organized crime. 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 action with prejudice. Plaintiff appealed the district court’s Rule 12(b)(6) dismissal of his first amended complaint.

In an unpublished memorandum, a divided Ninth Circuit affirmed the district court’s dismissal but reversed its denial of leave to amend. It 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 again failed to adequately plead access or substantial similarity. 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 access or “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. For this reason, among others, the district court dismissed plaintiff’s third amended complaint without leave to amend. (Read our summary of the district court’s decision here.) Once again, plaintiff appealed.

In yet another unpublished memorandum, the Ninth Circuit affirmed the district court’s decision, finding that plaintiff “was given two additional opportunities to amend the complaint, but … still fail[ed] to plausibly allege that defendants actually ‘copied’ and ‘unlawfully appropriated’ King Solomon.” First, the court addressed copying. King Solomon was not “widely disseminated” as it had only been shared with three people, the court explained. Plaintiff’s allegation that those three people “moved in similar circles” as defendants, or had a “working relationship” with defendants, was insufficient to establish that defendants “had a reasonable opportunity or reasonable possibility of viewing plaintiff’s work.” Further, plaintiff failed to plead similarities that were probative of copying, as any similarities were based on “coincidence, independent creation, or prior common source.” Accordingly, the court concluded that plaintiff did not adequately allege copying.

Second, the court addressed unlawful appropriation. The court concluded that plaintiff failed to “plausibly allege that Fox unlawfully appropriated King Solomon because the works [did] not share similarities in protectable expression” and because the similarities that did exist were “forms of literary expression that are unprotectable as a matter of law.” Plaintiff furthermore failed to “allege similarity in the ‘particular way in which the artistic elements form a coherent pattern, synthesis, or design.’”

Lastly, the court addressed whether plaintiff should have been granted leave to amend. Citing precedent that affords district courts broad discretion to either grant or refuse leave to amend after the plaintiff has already had two opportunities to amend, the court concluded that the district court did not abuse its discretion in refusing to grant leave to amend.

Summary prepared by Tal Dickstein and Lyndsi Allsop