“The time is always right to do the right thing,” Mary Bogan told the three-judge panel this morning, “and that time is now.”
Based in Philadelphia, which is also the setting of the Fox drama starring Terrence Howard, the Court of Appeals met this morning to hear arguments on behalf of actor Clayton Prince Tanksley.
Nearly a year ago to the day, U.S. District Judge Joel Slomsky dismissed Tanksley’s claims that the series co-created by Lee Daniels and Danny Strong infringed the copyright of Tanksley’s project “Cream.”
Slomsky found the shows “dramatically different,” and U.S. Circuit Judge D. Michael Fisher grilled Bogan to show that the ruling contained errors.
“What are you saying that the District Court did wrong besides rule against you?” Fisher asked.
Though Fisher noted that copyright law does not protect ideas, Bogan said there were more than ideas at stake.
“What are protectable here are unique expressions that Tanksley portrayed in his storyline,” she said, pointing to one scene in both shows where a man is shot in the street after he is finished urinating.
Demonstrably frustrated, however, Judge Fisher told Bogan that she appeared to gloss over the fact that the lower court conducted three days of arguments before ruling against Tanksley.
Bogan countered meanwhile that the trial court did not perform a fair analysis of the two works.
In addition to saying that Judge Slomsky did not look at the copying element, she complained that Fox failed to give notice before showing clips in the earlier proceedings.
U.S. Circuit Judge Michael Chagares pointed out that Bogan had the same opportunity as Fox had to submit her own clips.
Richard Stone, an attorney for Daniels and Fox Entertainment, said the case should stay dismissed.
“The court below did not make an error,” said Stone, of the firm Jenner and Block. “The works are not similar in the matter of the law, they really only share a basic idea and the main characters in ‘Empire’ have no analog in ‘Cream.’”
In his 2016 complaint, Tanksley claimed that he pitched the idea for “Cream” to Daniels privately after winning a 2008 pitch contest sponsored by the Greater Philadelphia Film Office, in which Tanksley apparently had pitched a different project.
Tanksley is also appealing the dismissal of his claims against the Greater Philadelphia Film Office, which is represented by Matthew Shapiro of Obermayer Rebmann. Judge Fisher was on hand Monday when Shapiro voiced puzzlement how the office could be held responsible.
“They’re saying that you did not take steps to protect the ideas being presented,” Judge Fisher summarized.
Like Tanksley, who had minor roles on “The Cosby Show” and in the “Hairspray” remake, Daniels hails from Philadelphia. Now in its fourth season, the series “Empire” follows the dynamics of a family struggling for control of a hip-hop empire.