Eggleston v. Daniels et al

Filing 61

ORDER granting in part and denying in part 46 Defendants' Motion to Dismiss for Failure to State a Claim, and DENYING without Prejudice 48 Defendants Daniels, Spellman, and Strong's Motion to Dismiss for Lack of Personal Jurisdiction. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SOPHIA EGGLESTON
v.

Plaintiffs,

Case No. 15-11893
HON. TERRENCE G. BERG
HON. ELIZABETH A. STAFFORD

LEE DANIELS, et al.
Defendants.

/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DKT. 46)
AND DENYING WITHOUT PREJUDICE
DEFENDANTS DANIELS, SPELLMAN, AND STRONG’S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION (DKT. 48)
In this copyright infringement case, Plaintiff Sophia Eggleston (“Plaintiff” or
“Eggleston”) alleges that her self-characterization in her 2009 memoir The Hidden
Hand was the uncredited inspiration for the character Loretha “Cookie” Lyon on the
FOX television series Empire. (Dkt. 1, ¶¶ 73-80.) Two motions are before the Court.
First, all Defendants seek to dismiss Plaintiff’s First Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. (Dkt. 46.) Second, Defendants Lee Daniels, Malcolm
Spellman, and Daniel Strong (the “Individual Defendants”) assert, pursuant to
Federal Rule of Civil Procedure 12(b)(2), that this Court lacks personal jurisdiction
over them. (Dkt. 48.) The motions are fully briefed, but Defendants have filed
objections to several declarations Plaintiff submitted as exhibits to her response
briefs. (Dkt. 56.) Plaintiff has responded to Defendants’ objections. (Dkt. 57.)

On May 18, 2016, a hearing was held on these motions in Detroit, Michigan.
(See Dkt. 58.) For the reasons stated below, Defendants’ motion to dismiss will be
GRANTED IN PART as to Count II only and DENIED as to the remaining
Counts. The Individual Defendants’ motion to dismiss for lack of personal
jurisdiction (Dkt. 48) will be DENIED WITHOUT PREJUDICE. The Court will
order the parties to conduct THIRTY DAYS of jurisdictional discovery. The
Individual Defendants may re-file their motion to dismiss for lack of personal
jurisdiction once this jurisdictional discovery is complete.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2015, Plaintiff filed a pro se complaint alleging that the
television series Empire, and in particular the character Loretha “Cookie” Lyon
(“Cookie Lyon”), was inspired by Plaintiff’s 2009 memoir The Hidden Hand. (See
Dkt. 1.) A copy of the memoir was attached to the complaint. (Id.) After Plaintiff
retained an attorney, she filed her First Amended Complaint on November 20,
2015, and again attached a copy of The Hidden Hand. (Dkt. 43.) The First Amended
Complaint contains two counts: copyright infringement in violation of 17 U.S.C. §
101 et seq. (Count I), and the unlawful appropriation of Plaintiff’s right to publicity
in violation of Michigan common law (Count II). (Id. at ¶¶ 75-96.)
A. Plaintiff’s Memoir The Hidden Hand
In 2009, Plaintiff self-published her memoir entitled The Hidden Hand. (Id.
at ¶¶ 31-32.) Composed between 2005 and 2007, with additional material added in
2009, The Hidden Hand details Plaintiff’s “life of crime, her time in prison, and her

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subsequent redemption.” (Id. at ¶ 35.) The title is a reference to the hidden hand of
God that Plaintiff believes has been guiding and protecting her throughout her
tumultuous life. (Dkt. 43-1, p. 5-7.) Plaintiff registered her memoir with the
copyright office on or about November 16, 2009, and received copyright registration
number TXu001656874. (Dkt. 43, ¶¶ 33-34.)
The Hidden Hand, set primarily in Detroit, is a thorough retelling of
Plaintiff’s life beginning with her birth in 1966 and her earliest memories. (Dkt. 431, p. 20.) Plaintiff describes herself as a person who was born “ready to fight” and
who suffered an abusive father throughout her childhood. (Id. at 20-23.) By the age
of eight, Plaintiff asserts that she was leading her first gang and had developed an
uncontrollable temper. (Id. at 27-28.) At fifteen, Plaintiff started selling drugs and
moved into the home of Robert Lucas, with whom she began a romantic
relationship. (Dkt. 43-2, pp. 3-11.) Plaintiff became addicted to drugs, and struggled
with that addiction throughout her adult life. (See, e.g, dkt. 43-9, pp. 25-30.) She
recounts how she committed crimes, was convicted of several offenses, and went to
jail, but was eventually able to maintain her sobriety after serving her second
prison term. (Dkt. 43-2, pp. 10, 32-45; Dkt. 43-3, pp. 9-10.)
Many significant events in Plaintiff’s life are detailed in The Hidden Hand.
Plaintiff recounts the attempted kidnapping of her youngest daughter (Dkt 43-10,
pp. 44-46), and coming to terms with her brother’s homosexuality, which he
revealed to her while she was in prison (Dkt. 43-9, pp. 3-4). Plaintiff survived
numerous incidents where she was threatened with guns. (Dkt. 43-8, p. 2; Dkt. 43-

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11, pp. 12-13; Dkt. 43-12, pp. 4-6, 21.) The memoir also includes stories about
Plaintiff’s two sisters, both of whom were murdered. (Dkt. 43-4, pp. 19-31; Dkt. 435, pp. 26-43.)
After her first sister’s passing, Plaintiff met Eddie Hodge at a Johnnie Taylor
show. (Dkt. 43-4, p. 37.) Eddie and Plaintiff became romantically involved, and it is
through Eddie’s contacts in the music business that Plaintiff met many famous
musicians, including Taylor, B.B. King, and George Clinton. (Dkt. 43-4, pp. 37-50;
Dkt. 43-5, pp. 1-2.) Plaintiff and Eddie eventually had a daughter. (Dkt. 43-5, p. 3.)
The couple would separate and reconcile several times throughout Plaintiff’s life
until Eddie’s death from cancer. (Dkt. 43-11, pp. 38-46.)
Prior to Eddie’s death, Plaintiff had a romantic relationship with Rodney
Meeks that was marred by drugs and violence. (Dkt. 43-5, pp. 37-50.) In 1992, after
a particularly violent argument, Plaintiff shot and killed Rodney. (Dkt. 43-8, pp. 527; Dkt. 43-9, p. 2.) Plaintiff refused a plea deal and was tried for second-degree
murder, but found guilty by jury of voluntary manslaughter and sentenced to one to
fifteen years’ imprisonment. (Dkt. 43-8, pp. 5-27.) Plaintiff claims that she was not
initially able to remember the incident, but suffered a mental breakdown in prison
when her memories finally returned, resulting in her temporary placement in the
prison psychiatric unit. (Dkt. 43-9, pp. 2-3.) Plaintiff was released in 1995, but she
failed several drug tests and had to complete a thirty-day drug rehabilitation
program to avoid returning to prison. (Id. at 14-15, 23-27.) After completing the

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program, Plaintiff founded a Christian ministry called Jesus Freedom that includes
a radio and television program. (Dkt. 43-9, pp. 29-33; Dkt. 43-10, p. 28.)
In 1996, Plaintiff learned about prisoner Felix Walls from Eddie’s oldest son,
who believed that Plaintiff’s ministry could help Walls. (Dkt. 43-10, p. 27.) Plaintiff
visited Walls at the Wayne County jail and soon fell in love with him. (Id. at 28.)
Plaintiff believes that Walls’ conviction is the result of a conspiracy against him and
supported him throughout his retrial, even petitioning a federal judge and then
United States Attorney General Janet Reno for assistance. (Id. at 29-44.) Walls was
convicted a second time, however, which led Plaintiff to believe that God introduced
her to Walls to inspire her to expose police corruption rather than to fulfill her own
personal desires. (Id.) As a result of this revelation, Plaintiff had a series of
altercations with the police. (Dkt. 43-11, pp. 6-8, 12-15, 46-47.)
In 2005, Plaintiff returned to prison for violating probation and marijuana
possession when the police found a large quantity of the drug in her home. (Dkt. 4312, pp. 39-46.) While serving this second prison sentence, Plaintiff began writing
The Hidden Hand. (Id. at 44-45.) Plaintiff was released in 2007 (Id. at 47), but she
had a health scare in 2009 that prompted her to write the final chapter. (Dkt. 43-13,
pp. 1-4.) The final chapter details how Plaintiff began working as a community
liaison for a home health care provider after serving her prison time. (Id. at 17-18.)
She then founded her own home health care company that brings doctors to the
residences of homebound individuals. (Id. at 18.) Plaintiff writes that she found
redemption in ensuring that seniors and the disabled receive quality health care

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and are treated with dignity. (Id. at 18-20.) The memoir ends after Plaintiff
succeeds in restoring the utilities of one of her elderly clients who could not afford to
pay those bills. (Id. at 31.) Plaintiff concludes by imploring her readers to trust in
the power and presence of God’s hidden hand in their own lives. (Id. at 32.)
B. Plaintiff’s Meeting with Rita Grant Miller
According to the First Amended Complaint, in 2011, approximately two years
after completing The Hidden Hand, Plaintiff was introduced to Rita Grant Miller
through a mutual acquaintance, producer Richard “Rick” Appling.1 (Dkt. 43, ¶¶ 3640.) Miller has worked as a screenwriter and has been involved in the production of
several films. (Id. at ¶ 37.) Appling arranged for Plaintiff to visit Miller’s residence
in California for a meeting where Plaintiff and Miller discussed adapting The
Hidden Hand into a screenplay.2 (Id. at ¶ 40.) At the meeting, Plaintiff gave Miller
a copy of The Hidden Hand and was interviewed at length by Miller, who took
notes. (Id. at ¶¶ 42-43.) Miller told Plaintiff and Appling that Miller would adapt
The Hidden Hand into a screenplay and pitch the idea to Defendant Lee Daniels.
(Id. at ¶¶ 44-45.) Miller showed Plaintiff the 2013 movie The Butler, directed by
Defendant Daniels and written and produced by Defendant Daniel Strong, to
familiarize Plaintiff with Defendant Daniels’ work. (Id. at ¶ 46.)

No party has filed a deposition, declaration, or affidavit from Rita Grant Miller and, as they
clarified at the motion hearing, Defendants do not challenge Plaintiff’s version of her interactions
with Miller or of Miller’s interactions with them. At this stage, the Court will therefore accept
Plaintiff’s well-plead allegations with respect to Miller and the Individual Defendants as true.
1

Plaintiff references her desire to make a movie about her life several times in The Hidden Hand.
(See, e.g., dkt. 43-1, pp. 12-13; dkt. 43-10, p. 8.)
2

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Plaintiff alleges that, on information and belief, Miller wrote a script or a
treatment of The Hidden Hand. (Id. at ¶ 47.) After Plaintiff returned to Michigan,
Miller called Plaintiff from New Jersey and told Plaintiff that Miller was meeting
with Defendant Daniels and would pitch the adaptation of The Hidden Hand to
him. (Id. at ¶¶ 48-52.) Plaintiff asserts that, as part of this pitch meeting, Miller
gave Defendant Daniels a copy of The Hidden Hand, Miller’s adaptation or
treatment of The Hidden Hand, and Miller’s interview notes. (Id. at ¶¶ 53-55.)
Defendant Daniels, according to Plaintiff, then shared these materials with
Defendants Malcolm Spellman and Strong, among others. (Id. at ¶ 56.) After
meeting with Defendant Daniels, Miller avoided all further contact with Plaintiff.
(Id. at ¶ 57.)
C. The FOX Television Series Empire
Defendants include the creators, writers, producers, directors, broadcasters,
and distributors of the FOX network television series Empire, which debuted on
January 7, 2015 and has been renewed for a third season. The series is set in
present-day New York City and chronicles the saga of the Lyon family’s struggle for
control of their music and entertainment company, Empire Entertainment.3 The
family patriarch is rapper and music mogul Lucious Lyon, a former drug dealer who
learns he has been diagnosed with a fatal disease. With only three years to live,

The following two-paragraph summary of Empire is taken from DVD recordings of the first season
submitted by Defendants as an exhibit to their Rule 12(b)(6) motion. (Dkt. 43, Ex. A.) Because
Plaintiff repeatedly references the television series in her First Amended Complaint, the Court will
consider those recordings as if they are incorporated by reference. See Weiner v. Klais and Co., 108
F.3d 86, 89 (6th Cir. 1997). Whenever possible, the Court will try to avoid spoiling significant plot
developments.
3

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Lucious contemplates the fate of his empire, and begins to consider which of his
family members is most qualified to succeed him.
When the series opens, Lucious is in full control of Empire Entertainment, a
privately-held music and entertainment company that was founded by Lucious and
his ex-wife, Cookie Lyon, with the help of money Cookie earned from her drug
dealing operations. In the first episode, Cookie is about halfway through serving a
thirty-year prison sentence, which she received after taking the fall for a drug deal
gone wrong. Unexpectedly, Cookie gains release after seventeen years and confronts
Lucious, demanding her share of the company. Thus begins the struggle for control
of Empire Entertainment between Lucious, Cookie, and their three sons: Andre, a
married businessman with bipolar disorder, Jamal, a gay singer rejected by his
homophobic father, and Hakeem, a talented but unfocused rapper. Defendants
compare the shifting alliances within and without the Lyon family to those in
William Shakespeare’s play King Lear or to those typically depicted in prime-time
television soap operas about the rich and famous, such as Dallas and Dynasty. (Dkt.
46, pp. 16-17.)
D. Substantial Similarities
Plaintiff alleges that that are many “striking and shocking similarities”
between the way she depicted herself in The Hidden Hand and the character of
Cookie Lyon. (Dkt. 43, ¶ 67.) In her First Amended Complaint, Plaintiff gives a list
of twenty-three such similarities. These include the fact that Plaintiff and Cookie
Lyon are both light-skinned African-American women who wear expensive clothing,

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lead gangs, have placed hits on men and sold drugs, have gay family members, have
two family members who were murdered, have served prison sentences, and are
known for their “vicious insults” and propensity to slap people. (Id.) Moreover, both
Plaintiff and Cookie Lyon have shielded others by stepping in front of a loaded gun,
have endured the kidnapping or attempted kidnapping of one of their children, lost
their lovers while in prison, and attacked their former lovers’ new lovers upon
release from prison. (Id.) The complaint further notes that they both have a
tendency to use the words “hoe” and “bitch”. (Id.)
Defendants argue that these similarities are coincidental rather than
substantial, and represent “unprotectable biographical facts, ideas, stock themes,
and elements commonplace in drug and violence stories.” (Dkt. 46, p. 11.) Plaintiff
maintains that these similarities speak to the “expression and portrayal of a
character” and are not mere biographical facts. (Dkt. 52, pp. 14-15.)

II.

ANALYSIS

The motions before the Court raise three matters to resolve. First are
Defendants’ evidentiary objections to the declarations that Plaintiff has attached to
her two response briefs. (Dkt. 56.) Second, there is Defendants’ motion to dismiss
Plaintiff’s First Amended Complaint pursuant to Rule 12(b)(6). (Dkt. 46.) And third,
the Individual Defendants have filed a motion to dismiss Plaintiff’s First Amended
Complaint pursuant to Rule 12(b)(2). (Dkt. 48.) The Court will now address each
issue in turn.

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A. Defendants’ Evidentiary Objections
As a threshold matter, Defendants have filed evidentiary objections to the
declarations that Plaintiff submitted in support of her response briefs as containing
hearsay or improper expert testimony. (Dkt. 56.) In particular, Defendants object to
the declaration of Plaintiff’s attorney, Thomas Heed, filed in support of Plaintiff’s
response to the Individual Defendants’ Rule 12(b)(2) motion. (Id. at 1.) Defendants
argue that Heed’s declaration “improperly relies on hearsay references” to the
contents of a contract between Defendant Daniels and FOX. (Id. at 8.) The Court
finds that the record is insufficient to permit a determination on the question of
personal jurisdiction. Consequently, the parties will be allowed to conduct thirty
days of jurisdictional discovery, and the motion to dismiss will be denied without
prejudice at this time. It is therefore premature to rule on the objection to Heed’s
declaration, which will also be overruled without prejudice.
The Court will also deny without prejudice Defendants’ objections to the
declarations of Plaintiff, Appling, and Paula Taylor that Plaintiff attached as
exhibits in support of her response to Defendants’ Rule 12(b)(6) motion. Defendants
argue that Plaintiff’s declaration relies on inadmissible hearsay by referencing, and
mischaracterizing, statements made by a judge during a television news program
that Plaintiff appeared on after she filed this case. (Id. at 9.) As for the declarations
of Appling and Taylor, Defendants argue that they contain inadmissible expert
testimony because the declarants “opine on the ultimate legal issue” of this case
without having been qualified as experts. (Id. at 10-14.)

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As noted below, when deciding a motion to dismiss, the Court’s inquiry is
limited to an examination of the complaint. Weiner v. Klais and Co., 108 F.3d 86, 88
(6th Cir. 1997). The Court is not to consider matters outside the pleadings, and may
only consider those documents attached to a motion to dismiss, such as a video
recording of the Empire television show, that are referred to in the complaint and
are central to Plaintiff’s claims. 4 Id. at 89. To do otherwise would be to risk
converting the motion to dismiss into a motion for summary judgment prior to any
discovery. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.”)
With the narrow scope of its inquiry in mind, the Court will not rely on the
declarations attached to Plaintiff’s response briefs. Accordingly, any objections
thereto will be denied without prejudice. If Plaintiff attempts to rely on these
declarations at the summary judgment phase, then Defendants may renew their
objections at that time.

In her response brief filed in opposition to Defendants’ Rule 12(b)(6) motion, Plaintiff requests that
the Court exclude Defendants’ exhibit video recording of the first season of Empire attached to its
Rule 12(b)(6) motion. (Dkt. 52, p. 16.) In the alternative, Plaintiff requests that the declarations she
has filed be considered and Defendants’ Rule 12(b)(6) motion converted to a motion for summary
judgment. (Id.) The Court has broad discretion to decide whether to consider matters outside the
pleadings and convert the motion. See Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th
Cir. 2010) (applying an abuse of discretion standard to district court’s decision to convert a 12(b)(6)
motion to dismiss into a motion for summary judgment). The Court will decline to exercise its
discretion here because no discovery has been conducted in this case and questions remain with
respect to its jurisdiction over the Individual Defendants, but the Court will consider the video
recording of Empire because it is clearly central to Plaintiff’s claims and referenced throughout her
First Amended Complaint. Indeed, determining whether Plaintiff’s claims are plausible requires
comparing the two works. The declarations in question, by contrast, are not necessary to decide
Defendants’ Rule 12(b)(6) motion.
4

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B. Defendants’ Rule 12(b)(6) Motion
Defendants challenge Plaintiff’s First Amended Complaint as insufficient to
state a claim and argue that it must be dismissed pursuant to Rule 12(b)(6). (Dkt.
46.) Both in their motion and at the hearing, Defendants did not contest Plaintiff’s
allegations that the Defendants had access to The Hidden Hand. Instead,
Defendants focus exclusively on Plaintiff’s allegations of substantial similarity. (Id.
at 19-32.) Defendants also argue that Plaintiff’s state law claim must be dismissed
because Plaintiff has not plead any facts alleging that she has a pecuniary interest
or commercial value in her identity. (Id. at 32-34.) Plaintiff disputes these
arguments. (Dkt. 52.)
1. Legal Standard for a Rule 12(b)(6) Motion
A motion to dismiss only tests the sufficiency of a complaint. In a light most
favorable to the plaintiff, the Court must assume that the factual allegations are
true and determine whether the complaint states a valid claim for relief. See
Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express Corp., 96 F.3d 200,
203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the complaint’s
“factual allegations must be enough to raise a right to relief above the speculative
level on the assumption that all of the allegations in the complaint are true.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and
emphasis omitted); see also Ass’n of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007). “[T]hat a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.

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Threadbare recitals of all the elements of a cause of action, supported by mere
conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. at 679 (internal quotation marks and citation omitted).
Moreover, “[o]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. “Determining whether a complaint states a plausible claim
for relief will ... be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense. But where 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.”
Id. (internal quotation marks and citation omitted). In sum, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its face.” Id. at 678 (internal quotation
marks and citation omitted).
When ruling on a motion to dismiss, a court may not consider matters outside
the pleadings. Weiner, 108 F.3d 86, 88 (6th Cir. 1997). However, “a court may
consider any matters of which a court may take judicial notice without converting a
party’s motion to dismiss into a motion for summary judgment.” Id. Additionally,
“[d]ocuments that a defendant attaches to a motion to dismiss are considered part of
the pleadings if they are referred to in the plaintiff’s complaint and are central to
her claim.” Id. at 89.

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2. Plaintiff’s Copyright Infringement Claim
Count I of Plaintiff’s First Amended Complaint alleges a copyright
infringement claim against Defendants under 17 U.S.C. § 101 et seq. (Dkt. 43, ¶¶
75-86.) Plaintiff asserts that Defendants have willfully violated Plaintiff’s copyright
by “writing, producing, and broadcasting” Empire, the infringement has occurred in
Michigan because the show is broadcast and sold there, and Defendants have made,
and will continue to make, unjust and substantial monetary gains. (Id.)
Because “copyright infringement lends itself readily to abusive litigation,
since the high cost of trying such a case can force a defendant who might otherwise
be successful in trial to settle in order to avoid the time and expenditure of a
resource intensive case … greater particularity in pleading, through showing
‘plausible grounds’, is required.” Nat’l Bus. Dev. Servs., Inc. v. Am. Credit Educ. &
Consulting Inc., 299 F. App’x 509, 512 (6th Cir. 2008). Showing plausible grounds
means pleading “enough fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [copyright infringement].” Id. (internal citation omitted).
“The elements of a copyright-infringement claim are (1) ownership of the
copyright by the plaintiff and (2) copying by the defendant.” Zomba Enterprises, Inc.
v. Panorama Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007). The first element is
satisfied in this case, as Defendants do not dispute Plaintiff’s allegation that she
holds the copyright to The Hidden Hand. The essential question is thus whether
Defendants unlawfully copied any elements of Plaintiff’s memoir.

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To establish that The Hidden Hand has been copied, Plaintiff must either
introduce direct evidence of Defendants’ copying or prove it indirectly by showing
that Defendants had access to Plaintiff’s work and that there is a substantial
similarity between it and Empire, and in particular between Plaintiff as she depicts
herself in the memoir and the character of Cookie Lyon, thus giving rise to an
inference of copying. See Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999).
For purposes of their Rule 12(b)(6) motion, Defendants do not contest
Plaintiff’s allegations that Defendants had access to The Hidden Hand through Rita
Grant Miller. (Dkt. 46, p. 9 n.6; Dkt. 54, p. 3.) The dispute at this stage is therefore
about whether substantial similarities exist between these works.
Although access is not in dispute, the Sixth Circuit has indicated that proof of
access can affect the degree of proof of similarity required to show copyright
infringement and vice versa:
[I]n some cases[,] the relationship between the degree of proof required for
similarity and access may be inversely proportional: where the similarity
between the two works is strong, less compelling proof of access may suffice.
[Citing Ellis v. Diffie, 177 F.3d 503, 507 (6th Cir. 2004).] See Three Boys
Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (stating that under
the “inverse ratio rule,” a lower standard of proof of similarity is required
where a high degree of access is shown); Arnstein v. Porter, 154 F.2d 464, 469
(2d Cir. 1946) (stating that “a case could occur in which the similarities were
so striking that we would reverse a finding of no access, despite weak
evidence of access (or no evidence thereof other than the similarities).”)
Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004) (emphasis added);
see also Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (“[W]e require a lower
standard of proof on substantial similarity when a high degree of access is shown.”).

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a. Determining Substantial Similarity
When determining whether two works are substantially similar, the Court
engages in a two-step analysis. First, “the court must ‘filter’ out elements of the
work that are not original to the author.” Bridgeport Music, Inc. v. UMG
Recordings, Inc., 585 F.3d 267, 274 (6th Cir. 2009) (quoting Murray Hill Publ’ns,
Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318 (6th Cir. 2004)).
Copyright protection is limited to the “expression of ideas” in a work – those aspects
“that display the stamp of the author’s originality” – and does not extend to ideas
themselves. Stromback, 384 F.3d at 296 (internal citations omitted).
To be original, “the requisite level of creativity is extremely low; even a slight
amount will suffice. The vast majority of works make the grade quite easily, as they
possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”
Murray Hill, 361 F.3d at 318 (quoting Feist v. Rural Tel. Serv. Co., 499 U.S. 340,
345 (1991)). While facts themselves are not protectable, “it is beyond dispute that
compilations of facts are within the subject matter of copyright” even though
“copyright in a factual compilation is thin.” Feist, 499 U.S. 340, 345, 349. To the
extent that a “compilation author clothes facts with an original collocation of words,
he or she may be able to claim a copyright in this written expression.” Id. In short,
an author’s selection and arrangement of facts, as well as her observations, if
original, are protectable. See id. at 348.
Scènes à faire, or “scenes of action,” “the indispensable or standard aspects of
a work, or those that ‘follow directly from unprotectable ideas’ should be filtered out

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as well.” Bridgeport Music, 585 F.3d at 274 (footnote omitted) (quoting Murray Hill,
361 F.3d at 320). “[N]atural elements in a story about a college fraternity,” for
example, include “parties, alcohol, co-eds, and wild behavior.” Stromback, 384 F.3d
at 298. “Elements such as drunks, prostitutes, vermin and derelict cars” would
similarly not be afforded copyright protection “in any realistic work about […]
policemen in the South Bronx.” Id. (quoting Walker v. Time Life Films, 784 F.2d 44,
50 (2nd Cir. 1986).
After filtering out the unprotectable elements, the works in question must be
compared for substantial similarity. “Substantial similarity exists where the
accused work is so similar to the plaintiff’s work that an ordinary reasonable person
would conclude that the defendant unlawfully appropriated the plaintiff’s
protectable [sic] expression by taking material of substance and value.” Stromback,
384 F.3d at 297 (internal quotation omitted). “[T]he copying of a relatively small but
qualitatively important or crucial element can be an appropriate basis upon which
to find substantial similarity.” Bridgestone, 585 F.3d at 275; see also Stromback, 384
F.3d at 297 (“The misappropriation of even a small portion of a copyrighted work
may constitute an infringement under certain circumstances. Even if a copied
portion [is] relatively small in proportion to the entire work, if qualitatively
important, the finder of fact may properly find substantial similarity.”). “[R]andom
similarities scattered throughout the works are not a proper basis for a finding of
substantial similarity.” Stromback, 384 F.3d at 297 (internal quotation omitted).

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As Defendants have filed a Rule 12(b)(6) motion, the Court’s role at this stage
is necessarily limited to deciding whether Plaintiff has plausibly established that
copyrightable elements of her self-portrayal in The Hidden Hand are “substantially
similar” enough to copyrightable elements of the character Cookie Lyon so as to
raise an inference of copying.5 See Bowen v. Paisley, No. 3:13-0414, 2013 WL
6237469, at *6 (M.D. Tenn. Dec. 3, 2013).
b. Substantial Similarity between Plaintiff and Cookie Lyon
Here, the dispute is over whether two characters are substantially similar.
Plaintiff alleges that the character of Sophia Eggleston in The Hidden Hand was
copied and used as the basis for the character of Cookie Lyon on Empire in violation
of Plaintiff’s copyright.

The Sixth Circuit has cautioned that granting summary judgment motions in copyright
infringement cases is generally disfavored because the issue of “substantial similarity” can present a
close factual question:
5

In copyright infringement cases, “summary judgment, particularly in favor of a
defendant, is a practice to be used sparingly” because substantial similarity is often
an extremely close question of fact, but “a court may compare the two works and
render a judgment for the defendant on the ground that as a matter of law a trier of
fact would not be permitted to find substantial similarity.”
Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009) (quoting Kohus v. Mariol, 328 F.3d 848, 853 (6th
Cir. 2003)). Summary judgment motions, unlike Rule 12(b)(6) motions, are premised on a developed
record—often with the benefit of expert testimony. If summary judgment motions in these kinds of
cases are to be granted “sparingly,” it is not surprising that this Court identified only a handful of
cases within this circuit in which a district court granted a Rule 12 motion involving a copyright
claim after conducting a substantial similarity analysis. See, e.g., Ford Motor Company v. Autel US
Inc., 2015 WL 5729067, at *5 (E.D. Mich., 2015) (Rule 12 motion granted without prejudice, plaintiff
granted leave to amend complaint); Dorchen/Martin Associates, Inc. v. Brook of Cheboygan, Inc., 838
F.Supp.2d 607, 613 (E.D. Mich., 2012) (same); Pollick v. Kimberly Clark–Corp., 817 F.Supp.2d 1005
(E.D. Mich., 2011) (Rule 12 motion granted in favor of the defendant manufacturer of Huggies “jeans
diapers” against the plaintiff holder of a copyright for “diaper jeans.”); National Business
Development Services, Inc. v. American Credit Educ. & Consulting, Inc., 2007 WL 2318752, at *3
(E.D. Mich., 2007) (Motion to dismiss granted because Plaintiff’s complaint contained a blanket
assertion of entitlement to relief, but no factual allegations supporting that assertion.”).

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In National Business Development Services, Inc. v. American Credit
Education and Consulting, Inc., 299 Fed. App’x. 509 (6th Cir. 2008), the Sixth
Circuit upheld the dismissal of the plaintiff’s complaint because it contained a
“blanket assertion of entitlement to relief” without “any factual allegations
supporting that assertion.” 299 Fed. App’x. at 512. There was neither an
identification of a work produced by the defendants that infringed upon the
plaintiff’s copyrighted work, nor a description of the manner in which the
defendants’ works infringed upon the plaintiff’s work. Id. The Sixth Circuit agreed
with the district court that the plaintiff’s complaint amounted to no more than a
speculative claim that the defendants may have produced some work that in some
way infringed upon the plaintiff’s works and therefore was an insufficient pleading.
Id.
In her First Amended Complaint, Plaintiff lists twenty-three elements of her
character in The Hidden Hand that she alleges have been copied by Defendants and
used to create the character of Cookie Lyon on Empire. (Dkt. 43, ¶ 67.) Defendants
argue that these elements are insufficient to establish substantial similarity
between Plaintiff and Cookie Lyon because these elements are unprotectable “bare
facts” from Plaintiff’s life story.6 (Dkt. 46, p. 22.) Plaintiff responds that what
Defendants characterize as “bare facts” are “expressive characteristics” that define
a character and represent a protectable compilation of experiences and traits. (Dkt

Defendants also argue that the plot, storyline, setting, pace, themes, and sequence of events are
dissimilar between the two works. (Dkt. 46, pp. 22-32.) Because Plaintiff’s First Amended Complaint
only contains the alleged similarities between Plaintiff as she depicted herself in her memoir and
Cookie Lyon, the Court will focus its analysis on the similarities between these two characters only.
6

19

52, pp. 22-23.) In short, Defendants assert that these twenty-three elements are
distinct events, traits, or experiences that are unoriginal and unprotectable while
Plaintiff argues that a character is more than the sum of its parts.
At first glance, many of the elements Plaintiff alleges were copied by
Defendants seem like elements typical to stories about those involved in drugs and
violence. It would not be atypical, for example, for the boss-type character of such a
story to have sold drugs, to be a gang leader, to own firearms, to wear expensive
clothing, to have an assertive or abrasive personality, to have been incarcerated, to
have ordered a hit on someone else, or to have experienced the murder of a friend or
family member. In this case, however, Plaintiff’s memoir features a woman in the
dominant role as drug dealer, gang leader, and perpetrator of violence. This is not
the stock and trade of the average drug gangster potboiler. More commonly, the
gang leader, drug dealer, or boss-like figure is a man; here however, both Plaintiff
and Cookie Lyon are light-skinned, African-American women.7
Some of the other alleged elements found in common between Eggleston and
Cookie Lyon are also not obviously of the stock-standard variety, regardless of a
character’s gender. For example, Plaintiff alleges that an element in common
between herself and Cookie Lyon is that both have a gay family member. Plaintiff’s
brother is gay, as is Cookie’s son, Jamal. Other unusual commonalities are that
both Plaintiff and Cookie have experienced the kidnapping of one of their children,

At the motion hearing, Defense counsel could not offer examples of other works in this narrative
genre that featured female characters in the “drug or organized crime boss-like” role. Other than the
2011 telenovela series La reina del Sur produced by Telemundo or the 1999 Jorge Franco novel
Rosario Tijeras, neither can this Court.
7

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have had two close family members murdered, have lost their lovers while serving
time in jail, and have shielded others by stepping between them and a loaded gun.
Taken together, these elements are arguably original and substantially similar.
In addition to alleging that substantial similarities exist between herself and
Cookie Lyon, Plaintiff also presents strong and, for purposes of this motion,
unchallenged, allegations that Defendants had access to her work through Rita
Grant Miller. Plaintiff alleges that she met with Miller, that they discussed
adapting The Hidden Hand, that a treatment was drafted, and that Defendants had
access to her work, the treatment, and Rita Grant Miller’s interview notes when
Miller met with Defendant Daniels to pitch the adaptation of The Hidden Hand.
As this is a Rule 12(b)(6) motion, the Court is not reaching the merits of
Plaintiff’s claim but is strictly limiting its inquiry to the sufficiency of the First
Amended Complaint. Based on the record at this stage of litigation, Plaintiff has
satisfied the “greater particularity in pleading” requirement for copyright actions.
Plaintiff alleges that there are twenty-three elements in common between Sophia
Eggleston as depicted in The Hidden Hand and Cookie Lyon as portrayed on
Empire. While Defendants argue that the two works in question have little-tonothing in common with respect to setting, pace, narrative structure, or other
characters, Plaintiff is not alleging otherwise. Plaintiff has thus sufficiently
identified a work product that allegedly infringed on her copyrighted work and has
described the manner in which Defendants’ work infringed upon Plaintiff’s product
with adequate specificity to give Defendants notice of the claim against them.

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Accordingly, Plaintiff’s allegation that there are substantial similarities
between these two works with respect to the characterization of Sophia Eggleston
as depicted in the Hidden Hand and the fictional character Cookie Lyon as depicted
on Empire is plead with sufficient facts to make it reasonable to expect that
discovery may reveal evidence of copyright infringement and is therefore
sufficiently plausible to survive a motion to dismiss.
3. Plaintiff’s State Law Right of Publicity Claim
Count II, however, is another story. Count II of Plaintiff’s First Amended
Complaint alleges, under Michigan common law, that Defendants appropriated her
right to publicity. (Dkt. 43, ¶¶ 87-96.) In particular, Plaintiff alleges that the
portrayal of Cookie Lyon “uses the Plaintiff’s likeness, actions, attributes, speech,
habits, and other identifiable characteristics” and that, as a result, Plaintiff “has
suffered, and continues to suffer, economic damages.” (Id. at ¶¶ 89, 96.)
Plaintiff has not plead sufficient facts to state a claim for the appropriation of
her right to publicity in violation of Michigan common law and this claim will
therefore be dismissed. The right of publicity protects the identity of a celebrity
from exploitive commercial use. Parks v. LaFace Records, 329 F.3d 437, 459 (6th
Cir. 2003). This right is governed by state law, and Michigan has recognized such a
right. See Pallas v. Crowley, Milner & Co., 322 Mich. 411, 417 (1948). “A right of
publicity claim is similar to a false advertising claim in that it grants a celebrity the
right to protect an economic interest in his or her name.” Parks, 329 F.3d at 460. All
that a plaintiff must prove in a right of publicity action is (1) that she has a

22

pecuniary interest in her identity, and (2) that her identity has been commercially
exploited by a defendant. Id.
Here, Plaintiff has not alleged any facts in the second version of her
complaint establishing that she has a pecuniary interest or any commercial value in
her identity. At the motion hearing, Plaintiff’s counsel argued that Plaintiff’s efforts
to establish a pecuniary interest in her identity are sufficient to establish a
protected right of publicity in that identity. While Plaintiff “need not be a national
celebrity to prevail,” Plaintiff “must demonstrate that there is value in associating
an item of commerce with [her] identity” in that “a merchant would gain significant
commercial value by associating an article of commerce with [her].” Landham v.
Lewis Galoob Toys, Inc., 227 F.3d 619, 624 (6th Cir. 2000). Plaintiff has made no
such allegation, and the Court is satisfied that allowing Plaintiff to amend her
complaint a second time would not cure this defect. Count II of the First Amended
Complaint will therefore be dismissed.
C. Defendant Daniels, Strong, and Spellman’s Rule 12(b)(2) Motion
The Individual Defendants have filed a motion to dismiss Plaintiff’s First
Amended Complaint pursuant to Rule 12(b)(2), arguing that Plaintiff has failed to
establish this Court’s jurisdiction over them. (Dkt. 48.) In particular, the Individual
Defendants assert that they lack minimum contacts with Michigan and the Eastern
District of Michigan and they cannot be fairly hailed into court in this state. (Id. at
1.) Plaintiff asserts in her response to the Individual Defendants’ motion that
sufficient minimum contacts exist because Empire is broadcast in Michigan, video

23

recordings of the show are sold in Michigan, and that several entertainment
industry publications have reported that Defendant Daniels signed a contract with
FOX to distribute the show nationally. (Dkt. 51, pp. 10-11.) As discovery has not yet
taken place in this case, no such contract has been produced.
1. Legal Standard
If a district court lacks jurisdiction over the defendants, dismissal is
appropriate under Federal Rule of Civil Procedure 12(b)(2). “The burden of
establishing jurisdiction is on the plaintiff.” Tobin v. Astra Pharm. Prod., Inc., 993
F.2d 528, 543 (6th Cir. 1993). “A district court, in its discretion ‘may decide the
motion upon the affidavits alone; it may permit discovery in aid of deciding the
motion; or it may conduct an evidentiary hearing to resolve any apparent factual
questions.’” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012)
(quoting Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)).
A federal court’s exercise of jurisdiction over litigants must be both “(1)
authorized by the law of the state in which it sits, and (2) in accordance with the
Due Process Clause of the Fourteenth Amendment.” Neogen Corp. v. Neo Gen
Screening, Inc., 282 F.3d 883, 888 (6th Cir. 2002). For Michigan, the courts have
determined Michigan’s long-arm statute gives the “maximum scope of personal
jurisdiction permitted by the due process clause of the Fourteenth Amendment.”
Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236 (6th Cir. 1981). Due process is
satisfied if a defendant has “sufficient minimum contacts” with the forum state
“such that the maintenance of the suit does not offend traditional notions of fairplay

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and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(citation omitted). “But the plaintiff cannot be the only link between the defendant
and the forum. Rather, it is the defendant’s conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.”
Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 478 (1985)).
Personal jurisdiction issues in Michigan courts are governed by the state’s
long-arm statute, Mich. Comp. Laws §§ 600.715 (corporations) and 600.705
(individuals). Further, Michigan courts and courts within this Circuit have
consistently held that Michigan’s long-arm statute extends as far as the Fourteenth
Amendment’s Due Process Clause allows. See Neogen Corp., 282 F.3d at 888; see
also Viches v. MLT, Inc., 127 F. Supp. 2d 828, 830 (E.D. Mich. 2000)). Accordingly, if
jurisdiction over the Individual Defendants in this Court is proper under the
Fourteenth Amendment, it is also proper under Michigan’s long-arm statute.
Due process is satisfied if the defendants have “sufficient minimum contacts”
with the forum state “such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985). In order to find limited personal jurisdiction, a
plaintiff needs to demonstrate three key factors: (1) the defendant must
“purposefully avail himself of the privilege of acting in the forum state;” (2) “the
cause of action must arise from the defendant’s activities there;” and (3) “the acts of
the defendant...must have a substantial enough connection with the forum state to

25

make the exercise of jurisdiction over the defendant reasonable.” Southern Mach.
Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). All three factors must
be present to allow for a finding of limited personal jurisdiction.
2. Jurisdictional Discovery Warranted
Plaintiff argues in her response brief that the Individual Defendants have
entered into a nationwide distribution contract and the product in question has
been distributed nationwide, therefore personal jurisdiction has been established in
any forum where the product in question is sold. (Dkt. 51, p. 18.) In sum, Plaintiff
asserts that there is personal jurisdiction in this case because the Individual
Defendants themselves, through a distributor, have broadcast and sold Empire in
Michigan. They have not only introduced Empire into the stream of commerce, but
have also directed it toward Michigan. The Individual Defendants maintain that
Plaintiff’s argument consists of factual misrepresentations supported by
inadmissible hearsay. (Dkt. 55, pp. 2-4.)
As this Circuit has explained, “the stumbling block for a plaintiff alleging
jurisdiction on the basis of a product’s availability in the forum state has ordinarily
been that ‘minimum contacts’ includes not just the placement of the product in the
stream of commerce, but ‘[a]dditional conduct of the defendant [that] may indicate
an intent or purpose to serve the market in the forum State....’” Palnik v. Westlake
Entertainment, Inc., 344 Fed. App’x. 249, 252 (2009) (quoting Asahi Metal
Industry Co., Ltd. v. Superior Court, 480 U.S. 102, 112 (1987) (O’Connor, J.,
plurality opinion)). Accordingly, the Sixth Circuit has focused on the distribution

26

relationship in determining whether a producer has sufficient connection to a forum
state for jurisdiction to be consistent with the due process clause. Id.
For example, in Bridgeport Music, Inc. v. Still N the Water Publishing, 327
F.3d 472 (6th Cir. 2003), the Sixth Circuit found that where a defendant was
“merely aware” of the fact of nationwide distribution without control over said
distribution, dismissal was appropriate. 327 F.3d at 480. By contrast, where a
defendant sought nationwide distribution by contracting with a distributor for
nationwide sales, the Sixth Circuit has found that a prima facie finding of
jurisdiction exists. Id. at 483; see also Tobin v. Astra Pharm. Prods., Inc., 993 F.2d
528, 543 (6th Cir. 1993) (personal jurisdiction appropriate because the defendant
“made a deliberate decision to market [its product] in all 50 states ....”); Poyner v.
Erma Werke Gmbh, 618 F.2d 1186, 1190–91 (6th Cir. 1980).
Plaintiff alleges in her First Amended Complaint that (1) the Individual
Defendants “helped write, create, develop, produce, or otherwise make” Empire; and
(2) Defendants Daniels and Strong direct Empire. (Dkt. 43, ¶¶ 29, 61.) Defendants
collectively produced and earned money from the creation and distribution of
Empire, which has been broadcast and distributed in Michigan. (See id. at ¶¶ 23,
73, 82, 88.) Drawing inferences in Plaintiff’s favor, as the Court must at this stage
of the litigation, the allegations in the complaint suggest that either the Individual
Defendants, after making Empire, caused it to be distributed in Michigan through a
national or regional distribution contract, or they were not necessarily responsible

27

for Empire appearing in Michigan, perhaps because they do not own the
distribution rights, or deferred to a third-party distributor.
The first scenario may permit personal jurisdiction, while the second scenario
may not. See Palnik v. Westlake Entertainment, Inc., 344 Fed. App’x. 249, 252
(2009). Because no discovery has yet been conducted in this case, it is unknown
which scenario is more accurate. Consequently, the parties will be ordered to
conduct thirty days of jurisdictional discovery. The Individual Defendants’ Rule
12(b)(2) motion will therefore be denied without prejudice, but may be renewed once
this jurisdictional discovery is complete.
III.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Defendants’ motion to dismiss
Plaintiff’s Complaint for failure to state a claim upon which relief can be granted
(Dkt. 46) is GRANTED IN PART with respect to Count II of Plaintiff’s First
Amended Complaint and DENIED IN PART with respect to Count I. Accordingly,
Count II of Plaintiff’s First Amended Complaint is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that the parties will conduct limited
jurisdictional discovery for no more than THIRTY DAYS from the date of this
Opinion and Order. Such discovery must be limited to jurisdictional issues raised in
or relevant to Defendant’s motion to dismiss for lack of personal jurisdiction. Any
party that believes the opposing party’s discovery requests exceed the scope and

28

purpose of limited jurisdictional discovery is instructed to contact the Court to
arrange a telephone status conference.
Because the parties will conduct jurisdictional discovery, IT IS FURTHER
ORDERED that Defendant Lee Daniels, Malcolm Spellman, and Daniel Strong’s
motion to dismiss Plaintiff’s Complaint for lack of personal jurisdiction (Dkt. 48) is
DENIED WITHOUT PREJUDICE. These defendants may re-file this motion
after jurisdictional discovery is complete.
Defendants’ evidentiary objections (Dkt. 56) are DENIED WITHOUT
PREJUDICE and may be renewed at the summary judgment phase.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: August 16, 2016

Certificate of Service
I hereby certify that this Order was electronically submitted on August 16, 2016, using the
CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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