‘Empire’ Copyright Battle Unravels at 3rd Circuit

PHILADELPHIA (CN) — Finding only a shared premise between the hit series “Empire” and a struggling actor’s screenplay, the Third Circuit affirmed the dismissal of copyright claims against writer-director Lee Daniels.

Philadelphia native Clayton Prince Tanksley filed the suit back in 2016, claiming that Daniels’ celebrated Fox series ripped off an idea he pitched the showrunner eight years earlier.

Like “Empire,” Tanksley’s show “Cream” centered on a black record executive who runs a music label. Because the similarities ended there, however, the Third Circuit found Tuesday that a federal judge was right to dismiss.

“As a preliminary matter, we note that the shared premise of the shows — an African-American, male record executive — is unprotectable,” U.S. Circuit Judge D. Michael Fisher wrote for a three-person panel. “These characters fit squarely within the class of ‘prototypes’ to which copyright protection has never extended.”

Continuing in parentheses, the ruling notes an observation from the Ninth Circuit in 2003 “that only characters with ‘consistent, widely identifiable traits,’ e.g., Godzilla, James Bond, and Rocky Balboa, have received copyright protection.”

Tanksley’s attempts to highlight some commonalities between the two shows proved unsuccessful.

Though both of the shows’ lead characters are diagnosed with diseases in their pilot episodes, Fisher said “any facial plausibility fades upon examination.”

“In ‘Empire,’ Lucious’ diagnosis of ALS — which is fatal — creates the urgency to choose his successor, the focal point of the entire series,” the 22-page opinion states. “In ‘Cream,’ Winston’s diagnosis of herpes — which is painful — merely serves to interfere with his romantic liaisons and introduces the venereal whodunit that follows. ‘Random similarities’ are insufficient to establish substantial similarity. After all, both Mozart and Metallica composed in E minor.”

Attorneys at the Los Angeles law firm Jenner & Block represented Daniels and applauded Tuesday’s outcome, which followed oral arguments in April.

“We are pleased with the Third Circuit’s thorough order affirming the district court’s dismissal of these claims, and with the Third Circuit’s decision to join other circuits in approving the dismissal of copyright infringement claims at the pleading stage where the works before the court are not substantially similar,” Jenner & Block attorney Richard Stone said in email.

Predrag Filipovic, an attorney for Tanksley based in Philadelphia, declined to comment.

Fisher in the ruling also quoted a 1980 opinion from the Second Circuit: “Where no reasonable juror could find substantial similarity, justice is best served by putting ‘a swift end to meritless litigation.’”

“With these principles in mind,” Fisher wrote later, “we conclude that, superficial similarities notwithstanding, ‘Cream’ and ‘Empire’ are not substantially similar as a matter of law. This conclusion flows unavoidably from a comparison of the two shows’ characters, settings, and storylines.”

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