United States District Court, E.D. Pennsylvania
STANDARD OF REVIEW
Plaintiff Has Not Plausibly Alleged a Claim of Copyright
Infringement Against Fox Defendants............... 6
Summary of the Two Works
Substantial Similarity Analysis
Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Sharon Pinkenson and the
Greater Philadelphia Film Office
Plaintiff Has Not Plausibly Alleged a Claim of Negligence
Against Sharon Pinkenson and the Greater Philadelphia Film
Office ........ 37
Plaintiff's Negligence Claim is Preempted by the
Copyright Act ................... 37
Plaintiff Has Not Plausibly Alleged a Claim of Negligence
Plaintiff Has Not Plausibly Alleged a Claim of Intentional
Misrepresentation Against Lee Daniels ........ 43
Plaintiff Has Not Plausibly Alleged a Claim of Negligent
Misrepresentation Against Lee Daniels
Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Leah Daniels-Butler .... 50
Clayton Prince Tanksley brings this action against numerous
Defendants alleging that they infringed on his copyrighted
work titled Cream by creating and using copyrighted
materials to produce the television series Empire.
(Doc. No. 45.) The Defendants in this case can be divided
into two identifiable groups. The first one consists of the
“Fox Defendants.” Included in this group are Lee
Daniels, Lee Daniels Entertainment, Leah Daniels-Butler,
Danny Strong, Danny Strong Productions, Twenty-First Century
Fox, Inc., Fox Entertainment Group, Inc., Twentieth Century
Fox Film Corp., Twentieth Century Fox Television, Inc.,
Twentieth Television, Inc., Twentieth Century Fox
International, Twentieth Century Fox International
Television, LLC, Twentieth Century Fox Home Entertainment,
LLC, Fox Networks Group, Inc., Fox Broadcasting Company, Fox
Television Stations, Inc., Fox Digital Media, and Fox
International Channels. The second group has two Defendants:
Sharon Pinkenson and the Greater Philadelphia Film Office
Count I of the Second Amended Complaint (“SAC”),
Plaintiff alleges that Fox Defendants directly infringed on
his copyrighted work Cream by producing the
television series Empire. (Doc. No. 45 at
¶¶ 42-56.) In Count II, Plaintiff alleges a
contributory copyright infringement claim against Sharon
Pinkenson and GPFO, and in Count III, a negligence claim
against the same Defendants. (Id. at ¶¶
57-70.) In Counts IV and V respectively, Plaintiff alleges
intentional and negligent misrepresentation claims against
Lee Daniels. (Id. at ¶¶ 71-79.) Finally,
in Count VI, Plaintiff alleges that Leah Daniels-Butler
committed contributory copyright infringement. (Id.
at ¶¶ 79-86.) Defendants have filed two Motions to
Dismiss the SAC in its entirety. (Doc. Nos. 53-54.) The
Motions are now ripe for disposition.
2005, Plaintiff Clayton Prince Tanksley wrote, filmed, and
produced a three episode television series titled
Cream about an African American man “who has
overcome a disadvantaged . . . past to achieve financial
success in the music industry, only to be exploited by those
closest to him.” (Doc. No. 45 at ¶ 41(A).) On
September 23, 2005, Plaintiff obtained a registration of
Cream from the United States Copyright Office.
(Registration Number Pau3-002-354.) He then set about
marketing his copyrighted work with the hope of making a hit
television show or movie. Through these efforts, Tanksley
learned about an event called Philly Pitch, where
“writers and potential producers [were presented with]
an opportunity to pitch their film concepts to a panel of
entertainment industry professionals who act as
‘judges.'” (Doc. No. 45 at ¶ 31.) The
Greater Philadelphia Film Office (“GPFO”) and its
Executive Director, Sharon Pinkenson, organized this event.
(Id. at ¶ 32.) Lee Daniels participated as one
of the judges. (Id. at ¶ 31.)
April 5, 2008, Tanksley attended Philly Pitch. (Id.)
He presented one copyrighted work, titled Kung Fu
Sissy, to the panel of judges. (See Doc. No. 53,
Ex. B.) After each presenter pitched an idea to the panel,
the participants broke for informal discussions and
networking. At that time, Plaintiff alleges that he and
Daniels privately discussed Cream. (Doc. No. 45 at
¶¶ 35-36.) Tanksley gave Daniels several copies of
a DVD containing his copyrighted work, along with a written
script of the show. (Id. at ¶ 36.) His goal was
to work with Daniels to produce Cream as a hit
television show. (Id.)
seven years later, on January 7, 2015, Fox aired a pilot
episode of its new television series titled Empire,
which features the struggles of Lucious Lyon, a rapper and
former drug dealer who founded one of the world's leading
media companies, Empire Entertainment, with his ex-wife
Cookie Lyon. (Id. at ¶ 37.) This soap opera
chronicles Lucious and Cookies' fight for control over
Empire Entertainment, vicariously waged through a succession
battle among their three adult sons. (Doc. No. 53 at 3.)
Daniels and Danny Strong are the creators of Empire.
(Id. at ¶ 37.) Plaintiff alleges that Daniels
and Strong surreptitiously took his copyrighted work and were
“knowingly and willfully involved in the unauthorized
copying of ‘Cream'” in connection with the
creation of Empire. (Id. at ¶ 46.)
Plaintiff avers that after the airing of Empire, he
was unable to successfully market Cream to any
television network “due to its striking similarities to
‘Empire.'” (Id. at ¶ 41.)
January 8, 2016, Plaintiff initiated this action. (Doc. No.
1.) He filed an Amended Complaint on January 29, 2016. (Doc.
No. 3.) On June 17, 2016, Defendants filed two Motions to
Dismiss the Amended Complaint. (Doc. Nos. 21, 25). The Court
held a hearing on Defendants' Motions to Dismiss on June
2, 2016. (Doc. Nos. 41-42.) At the hearing, this Court
afforded Plaintiff another opportunity to amend the Amended
Complaint. On August 1, 2016, Plaintiff filed the Second
Amended Complaint (“SAC”). (Doc. No. 45.) Upon
the filing of the SAC, the Court denied Defendants'
pending Motions to Dismiss without prejudice as moot. (Doc.
September 30, 2016, Defendants filed another two Motions to
Dismiss the SAC. (Doc. Nos. 53-54.) Plaintiff filed Responses
in Opposition on October 30, 2016. (Doc. Nos. 57-60.) On
November 14, 2016, Defendants filed Replies. (Doc. Nos.
62-63.) This Court held a hearing on the Motions to Dismiss
the SAC. (See Doc. No. 69.) At the hearing, the
Court granted the parties leave to file supplemental briefs
in support of their positions. (Id.) On March 27,
2017, Plaintiff and Defendants filed supplemental briefs on
the Motions to Dismiss (Doc. Nos. 80-84), which is now ripe
for a decision.
STANDARD OF REVIEW
motion to dismiss standard under Federal Rule of Civil
Procedure 12(b)(6) is set forth in Ashcroft v.
Iqbal, 556 U.S. 662 (2009). After Iqbal it is
clear that “threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do
not suffice” to defeat a Rule 12(b)(6) motion to
dismiss. Id. at 663; see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ethypharm S.A. France v.
Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013)
(citing Sheridan v. NGK Metals Corp., 609
F.3d 239, 262 n.27 (3d Cir. 2010)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. Applying the principles of Iqbal and
Twombly, the Third Circuit in Santiago v.
Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth
a three-part analysis that a district court in this Circuit
must conduct in evaluating whether allegations in a complaint
survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Second, the
court should identify allegations that, “because they
are no more than conclusions, are not entitled to the
assumption of truth.” Finally, “where there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement for relief.”
Id. at 130 (quoting Iqbal, 556 U.S. at 675,
679). “This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations,
and then (3) looking at the well-pleaded components of the
complaint and evaluating whether all of the elements
identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563
(3d Cir. 2011).
complaint must do more than allege a plaintiff's
entitlement to relief, it must “show” such an
entitlement with its facts. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (citing Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir.
2008)). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not
‘shown' - ‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679. The
“plausibility” determination is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
to Federal Rule of Civil Procedure 12(b)(6), Defendants seek
to dismiss the SAC in its entirety. (Doc. Nos. 53-54.) The
Court will address each of Plaintiff's claims in turn.
Plaintiff Has Not Plausibly Alleged a Claim of
Copyright Infringement Against Fox
Count I of the SAC, Plaintiff alleges that the Fox Defendants
directly infringed on his copyrighted work titled
Cream by producing the television series
Empire. (Doc. No. 45 at ¶¶ 42-56.)
“Anyone who violates any of the exclusive rights of the
copyright owner . . . is an infringer . . . .” 17
U.S.C. § 501(a). To state a claim of copyright
infringement, a plaintiff must establish ownership of a valid
copyright, and unauthorized copying of protectable elements
of the plaintiff's copyrighted work. Tanikumi v. Walt
Disney Co., 616 F. App'x 515, 519 (3d Cir. 2015).
Proof of unauthorized copying can be found either in the
defendant's admission or, as is more often the case, by
circumstantial evidence of access and substantial similarity.
Dam Things from Denmark, a/k/a Troll Co. ApS v. Russ
Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir.
2002). To determine whether the works are substantially
similar, a court “compares the allegedly infringing
work with the original work, and considers whether a
‘lay-observer' would believe that the copying was
of protectable aspects of the copyrighted
work.” Jackson v. Booker, 465 F.
App'x 163, 165 (3d Cir. 2012).
inquiry involves distinguishing between protectable and
unprotectable aspects of the copyrighted work. Kay Berry,
Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 208 (3d Cir.
2005). “It is a fundamental premise of copyright law
that an author can protect only the expression of an idea,
but not the idea itself.” Id. Accordingly, a
court must discern “the author's expression and the
idea or theme that he . . . seeks to convey or explore,
” because the former is protected and the latter is
not. Id.; see also Winstead v. Jackson, 509
F. App'x 139, 143 (3d Cir. 2013) (citations omitted)
(“The court must determine whether the allegedly
infringing work is similar because it appropriates the unique
expressions of the original work, or merely because it
contains elements that would be expected when two works . . .
explore the same theme.”).
analyzing the two works for substantial similarity, the court
compares aspects such as plot, characters, theme, mood,
setting, and dialogue. See, e.g., Tanikumi,
616 F. App'x at 521 (comparing plot, theme, setting, and
characters, among other aspects, to determine if there was
substantial similarity between the allegedly infringing work
and the original copyrighted work). Without meticulously
dissecting the works, a court's task is to compare the
works' “total concept and overall feel . . . as
instructed [by] good eyes and common sense.” Peter
F. Gaito Architecture, LLC v. Simone Development Corp.,
602 F.3d 57, 66 (2d Cir. 2010).
Fox Defendants do not contest that Plaintiff held a valid
copyright for Cream, and that Plaintiff has
adequately pled access. (Doc. No. 54 at 23 n.12.) Rather,
they argue that Plaintiff has failed to plead facts showing
that the two works are substantially similar. (Id.
at 23.) In contrast, Plaintiff argues that he has stated a
claim for copyright infringement because the two works are
substantially similar in plot, characters, theme, mood, and
setting. (Doc. No. 60 at 10-24.) For reasons that
follow, this Court agrees with Fox Defendants that
Empire does not infringe on the expressions embodied
Summary of the Two Works
determine whether Cream and Empire are
substantially similar, it is helpful first to summarize the
content of the two works.
Summary of Cream
copyrighted work titled Cream can be summarized as a
television show that follows the trials and tribulations of
Winston St. James, an African-American hip-hop mogul who runs
a record label called Big Balla Records. (Doc. No. 45 at
¶ 41.) Throughout the three episode series, viewers
watch Winston St. James manage artists who seek contracts
with the label, attempt to save his sister (who is actually
his daughter) from an abusive relationship, attend the
funeral of his mother, and dismiss his father's request
to co-own the record label. Additionally, Cream
features extensive sexual scenes, in which Winston engages in
sex with multiple partners, contracts herpes, and seeks
solace in a prostitute.
one of Cream opens with Winston having sex with his
two married assistants, Tiffany and Chantal. (Cream
DVD at 0:44-1:46.) In the next scene, Winston arrives late to
a dance studio where he is scheduled to hear a rap
group's audition. (Id. at 1:48-2:49.) As the rap
group performs a song, the scene fades to an extended fantasy
sequence in which Winston has sex with yet another woman,
Joy, who is a member of the rap group's entourage.
(Id. at 2:50-5:16.)
next scene takes a dramatic shift. Winston's sister
Angelica is beaten by her boyfriend Shekwan. (Id. at
5:22-6:30.) Shekwan asks Angelica to call Winston and set up
an audition for him. (Id. at 6:30-6:33.) Angelica
obliges. (Id. at 6:50-7:30.) Winston receives her
call while in bed with Joy, and initially refuses to give
Shekwan an audition, but then tells Angelica to meet him in
his office to discuss it. (Id. at 7:30-8:08.) The
next day, Angelica arrives at Winston's office wearing
sunglasses. (Id. at 8:24-8:38.) Winston asks
Angelica to take off the sunglasses, revealing a black eye,
which she presumably got from the abusive Shekwan.
(Id. at 8:39-9:35.) At that moment, Winston decides
to give Shekwan an audition after all, hatching a plot to
exact revenge on the man who is hurting his little sister.
(Id. at 9:36-10:01.) After Angelica leaves the
office, Winston grabs his groin and calls his secretary,
asking that she schedule an urgent appointment with his
doctor. (Id. at 10:18-10:26.)
next scene, Shekwan auditions for Winston in the dance
studio. (Id. at 10:38-12:30.) The audition is
horrendous, yet Winston signs Shekwan to the record label
anyway. (Id. at 12:30-12:59.) After the audition,
Winston asks Angelica to join him for dinner, so that she is
away from Shekwan. (Id. at 13:08-13:39.) Then he
gestures to two men in the studio, suggesting that they can
now go forward with a plan to take out revenge on Shekwan.
(Id. at 13:40-13:47.)
scene then shifts to later that night, where Shekwan walks
down an alleyway talking on the phone about his new contract
with the record label. (Id. at 13:54-12:59.) As
Shekwan urinates on a dumpster, the two men lurk in the
darkness and shoot Shekwan. (Id. at 14:25- 14:50.)
The men then enter the frame and kick him, checking that
Shekwan is dead. (Id. at 14:55-15:14.) The credits
roll. Thereafter, episode one concludes with a public service
announcement from the actress who plays Angelica, who warns
of the dangers of domestic violence and offers resources for
those who need help escaping from an abusive relationship.
(Id. at 15:48-16:46.)
in episode two of Cream, Winston learns from
Angelica that Shekwan survived the shooting. (Id. at
17:44-18:19.) He berates the two hit men for failing to
finish the job. (Id. at 18:19-19:11.) The next scene
shifts to a doctor's office, where Winston is informed
that he has herpes, a non-fatal disease. (Id. at
19:26-22:03.) The scene cuts to one of Winston's sexual
partners, Chantal, having sex with her husband. (Id.
at 22:06-22:53.) After having sex, Chantal appears to be in
pain, apparently experiencing the symptoms of herpes.
(Id. at 23:45-23:56.)
next day, Winston and Tiffany meet in the office.
(Id. at 23:58-24:33.) Tiffany tells Winston that she
and Chantal both are feeling under the weather, suggesting to
the audience that they are all feeling the effects of herpes.
next scene, Angelica sits beside Shekwan's hospital bed,
praying for his recovery. (Id. at 25:45-26:22.)
Winston arrives and suggests that Angelica leave and get some
rest. (Id. at 26:22-27:21.) Alone in the hospital
room with Shekwan, Winston threatens the man, even though he
appears to be in a coma. (Id. at 27:41-28:46.) As
Winston leaves, however, the camera cuts to Shekwan opening
his eyes. (Id. at 28:46-28:57.)
the office, Winston contemplates his herpes diagnosis,
detailing his sexual encounters through various flashbacks.
(Id. at 29:00-29:49.) Looking forlorn, he
begrudgingly takes herpes medication. (Id.) Next,
one of Winston's artists interrupts him in the bathroom
demanding more money for his record sales, but Winston pulls
out a gun and refuses to pay him. (Id. at
29:53-31:15.) In the meantime, Winston's mother Nora
arrives at the office with Angelo, who is introduced as
Winston's brother. (Id. at 31:19-32:54.) Angelo
is developmentally disabled and has trouble speaking
coherently, referring to himself in the third person.
(Id. at 31:52-32:16.) Nora explains that
Winston's father, Sammy, is currently dating
Winston's ex-girlfriend Brenda. (Id.)
following scene, Sammy and Brenda are sitting on the couch
and talking in Sammy's apartment. (Id. at
32:56-34:02.) Through their conversation, the audience learns
that Angelica and Angelo are really Brenda and Winston's
children-not his younger siblings. (Id.)
Winston's mother raised Angelica and Angelo as her own
children after Brenda was sent away for her drug problem.
(Id.) Sammy and Brenda also discuss how Sammy is
going to take over Big Balla Records and Brenda is going to
“get her kids back.” (Id.) The scene
ends heavily suggesting that Sammy and Brenda will have sex.
(Id. at 34:03-34:21.)
two then concludes with a lengthy public service announcement
wherein Plaintiff Tanksley, the actor who plays Winston,
talks about herpes, its statistics and its symptoms.
(Id. at 34:59-36:43.) He recommends getting tested
for herpes and other sexually transmitted diseases.
third and final episode of the Cream pilot opens
with a rapper recording in the studio. (Id. at
38:00-39:13.) While in the studio, Winston receives a call
from Angelica, informing him that Shekwan is “going to
make a fully recovery.” (Id. at 39:15-40:15.)
following scene, Nora, Winston's mother, arrives at
Sammy's apartment to confront him about his affair with
Brenda. (Id. at 40:20-41:20.) Nora follows Brenda
out of the apartment, where they have a confrontation in a
parking lot. (Id. at 41:20-42:28.) Nora has a heart
attack and dies. (Id.) At her funeral, Sammy demands
that he take over the share of Big Balla Records that Nora
owned (50%), which had not been revealed in the storyline
until this point. (Id. at 43:00-45:22.) Winston
refuses and storms off. (Id.)
lengthy sequence of Winston driving around, the audience sees
him pick up a prostitute named Regina, and they go to her
apartment. (Id. at 45:38-45:22.) However, Winston is
too upset by his mother's death to have sex.
Winston watches as Shekwan records a song called
“Biscuits and Gravy, ” which is meant to be
comically bad. (Id. at 50:30-52:41.) However, to
Winston's chagrin, the song becomes a hit. In the
following scene, Winston, Chantal, and Tiffany deal with the
herpes outbreak in the office. (Id. at 53:01-54:15.)
Chantal admits to Winston that she has herpes, but Winston
denies being infected. (Id.) Therefore, Chantal
blames Tiffany for spreading herpes to the group and they get
into an altercation. (Id.) When Chantal later admits
to her husband that she has herpes, he kicks her out of their
apartment. Chantal goes to Winston's home and asks to
stay with him, and the two have sex.
scene then cuts to Sammy's apartment, where Brenda and
Sammy are engaging in sexual acts. (Id. at
54:18-55:39.) Sammy is upset that Angelica and Angelo
received all of Nora's shares of Big Balla Records.
(Id.) Sammy decides that he and Brenda should reveal
to Angelica and Angelo who their parents really are.
(Id.) In this way, Sammy will be able to control
their shares of Big Balla Records. (Id.)
Sammy and Brenda reveal to Angelica who her parents really
are. (Id. at 104:37-108:41.) Upset at the news,
Angelica calls Winston and says that she never wants to see
him again. (Id.) Distraught, Winston goes to
Regina's apartment, seeking solace in the prostitute.
(Id. at 109:00-111:15.) While there, he reveals the
truth about Angelica and Angelo, and his herpes diagnosis.
(Id.) Regina confesses that she also has herpes.
(Id.) Minutes later, Chantal's husband stops by
Regina's apartment for a date. (Id.) At that
moment, Winston realizes that Chantal's husband must have
infected her with herpes, and that Chantal must have spread
the disease to Winston and Tiffany. (Id.)
conclusion of the pilot, the actress who plays Nora offers a
public service announcement on the benefits of adoption.
(Id. at 111:54-112:49.) She says that there is an
“epidemic across America of grandparents rearing
grandchildren, in many cases with special needs, because of
the parents' problems, ” and encourages adoption of
those children who “don't have grandparents to
rescue them.” (Id.)
Summary of Empire
allegedly infringing work titled Empire can be
summarized as a television soap opera “reveling in the
intrigue, power struggles and opulent excesses of a powerful
and wealthy family”-the Lyons. (Doc. No. 54 at 3.)
Empire tells the story of Lucious Lyon and his
ex-wife Cookie Lyon, who rose from a criminal past of drug
dealing to create a leading music label and entertainment
company called Empire Entertainment. (Id.) The show
details the couples' fight for control of the company,
and chronicles a King Lear-style succession rivalry
among their three sons-Andre, Jamal, and Hakeem-who each want
to succeed their father in running the family business.
pilot episode of Empire opens with Lucious Lyon, the
family patriarch, sitting in a recording studio dissatisfied
with the performance of one of his artists. (Empire
DVD at 0:12-1:33.) As she sings, the scene cuts to stylized
flashbacks of Lucious being examined by doctors who appear to
be delivering bad news. (Id.) To get the performance
he wants, Lucious emotionally manipulates the artist, telling
her to recall the recent death of her brother. (Id.
at 1:44-2:09.) The performance that follows demonstrates how
Lucious is both a genius record producer and a man who is
willing to stop at nothing to get what he wants.
(Id. at 2:09-2:44.)
next scene opens with a lavish party on a yacht anchored in
New York harbor. (Id. at 2:55-4:30.) Lucious's
sons Jamal and Hakeem improvise an upbeat musical
performance, while their older brother Andre cynically looks
down on them for showing off their talent to gain their
father's affection. (Id.)
next scene cuts back to Manhattan where, greeted by a throng
of paparazzi and fans, Lucious arrives at the skyscraper
which is the headquarters of Empire Entertainment.
(Id. at 4:40-4:55.) Lucious's faithful assistant
Becky quickly meets him in the lobby and informs him of the
days urgent matters before Lucious goes to a board meeting.
(Id. at 4:55-5:31.) At the board meeting, he
announces that Empire Entertainment has filed to become a
publicly traded company. (Id. at 5:32-6:40.)
Lucious meets with his three sons at his mansion and tells
them that he plans to select one of them to take over Empire
Entertainment, but that none of them are ready yet.
(Id. at 6:46-8:05.) Jamal, the middle child, asks
“what is this King Lear now?, ”
suggesting the narrative for the series. (Id.)
scene then cuts to prison gates opening and Cookie Lyon, the
matriarch of the Lyon family, exiting the grounds.
(Id. at 8:08-8:33.) The audience learns that
Lucious's ex-wife Cookie was released after serving