Earlier this year, the screenwriter for the television show Empire was sued for copyright infringement, along with other defendants, including production company Twentieth Century Fox Film Corporation. The lawsuit was brought by pro se Plaintiff, Timothy J. Levi who alleges that he owns the copyright for a book he wrote entitled “United Incorporated: The Mastermind.” The Complaint alleges that the Defendants copied elements from the Plaintiff’s book in order to create the television show Empire. Specifically, the Complaint alleges that “[t]he character traits of the lead actor of Empire, Terrence Howard, are strikingly similar to the character traits of Anthony ‘Pee Wee’ Lewis, the lead character of Unity Incorporated: The Mastermind.” The Complaint also lists numerous other alleged similarities between the Plaintiffs’ book and the show Empire, namely the theme, plot and mood. The Complaint purports to allege claims for federal copyright infringement.
Similarities between the two works is not enough on its own to support a finding of copyright infringement. First, the Plaintiff will need to show that he is entitled to copyright protection and that the Defendants had access to the Plaintiff’s copyrighted work. Further, the burden will be on the Plaintiff to show that alleged similarities are substantial. In determining whether the show Empire infringes upon the Plaintiff’s work, the Court will likely look to see what elements of Plaintiff’s work is entitled to copyright protection and what is not. Incidents, characters or settings which as a practical matter are indispensable in the treatment of a given topic, such as cars in a car chase scene, are not entitled to copyright protection. The Court will then look to see how much of the plot, characters, mood and theme of Plaintiff’s work have been copied. The more elements that are taken the more likely that there will be finding a substantial similarity between the two works. However, as with any copyright infringement case, the focus will be on whether the allegedly infringing work copies protectable expression and not just ideas or non-protectable elements.
After the filing of the Complaint, the Defendants filed multiple motions to dismiss the Complaint, either for lack of jurisdiction or for failure to assert a claim. The Plaintiff recently filed a response noting that the Complaint identified eighteen expressions of ideas that “are strikingly similar to the expression of ideas in Unity Incorporated: The Mastermind,” and which the Plaintiff claims should be entitled to copyright protection. The Court is likely to rule on whether Plaintiff’s Complaint can proceed as drafted in the next few months. Generally, even if a Complaint is dismissed for failure to state claim, Courts usually allow the Plaintiff at least one chance to amend the Complaint, unless the facts alleged could not feasibly support any legal claim.
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Daniel Devine, Esq.
Santucci Priore, P.L.