Dickerson v. Time Warner, Inc. et al

Filing 70

MEMORANDUM OPINION AND ORDER: re: 63 FIRST LETTER MOTION for Leave to File DVD Barbershop Comparison Annexed To The Affidavit of Ronald Dickerson and Provided to Court and Defendants on November 18, 2016 addressed to Judge Laura Taylor Swain fro m Christopher Brown dated November filed by Ronald Dickerson, 49 MOTION to Dismiss First Amended Complaint filed by Showtime Networks, Inc., Metro-Goldwyn-Mayer Studios Inc., WB Studio Enterprises, Inc. For the foregoing reasons, Defendants' motion to dismiss the First Amended Complaint is granted. This Memorandum Opinion and Order resolves docket entry nos. 49 and 63. The Clerk of Court is requested to enter judgment in Defendants' favor and close this case. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/05/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
RONALD DICKERSON,
Plaintiff,
-v-

No. 16 CV 2695-LTS

WB STUDIO ENTERPRISES, INC., et al.,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff Ronald Dickerson, also known as JD Lawrence, commenced this
copyright infringement suit against a number of Defendants on April 12, 2016. On August 8,
2016, Plaintiff filed the operative First Amended Complaint (docket entry no. 47 (the “FAC”)),
naming as Defendants Metro-Goldwyn-Mayer Studios Inc. (“MGM”), Showtime Networks, Inc.
(“Showtime”), and WB Studio Enterprises, Inc. (“WB” and, collectively with MGM and
Showtime, “Defendants”). Defendants have now moved to dismiss the FAC pursuant to Federal
Rule of Civil Procedure 12(b)(6), for failure to state a claim for which relief may be granted.
The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331.
The Court has considered carefully the submissions of both parties in connection
with the instant motion and, for the following reasons, Defendants’ motion to dismiss is granted.
BACKGROUND
The following recitation of relevant facts is derived from the allegations in the
FAC, together with the works at issue, which are “documents attached to the complaint as an
exhibit or incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002).

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Plaintiff owns the copyright in the script (the “Script”) to a play titled Scissors
Cut the Devil Loose (“Scissors”), which copyright was registered in 2000, and in a video
recording of Scissors (the “Recording”), which copyright was registered in 2016.1 (FAC ¶ 13;
docket entry no. 51, Declaration of Jonathan Zavin (“Zavin Decl.”), at Ex. A (the Script) & Ex.
B (the Recording).) Defendants are the owners of the copyrighted works “Barbershop,”
“Barbershop 2: Back in Business,” “Barbershop: The Next Cut,” and the “Barbershop” television
series (collectively, the “Barbershop Works”). (FAC ¶¶ 24-26.2) Plaintiff alleges that the
Barbershop Works infringe on his copyright in Scissors. Because the Script and the Recording
present very different stories, each will be summarized in turn.
The Script
In the Script, the play Scissors tells the story of Job Williams, a twenty-five year
old African-American barber who works in a barbershop named Scissors that is owned by an
older African-American man named Clarence. At the outset of the play, God and Lucifer have a
conversation in which God grants Lucifer permission to “test yet another” as Lucifer once tested
Job in the Biblical story, and points to Job Williams as the man whose faith Lucifer may test.
(Script pp. 5-7.) The play opens with a series of conversations between Clarence, his son
Woody, “Fast Eddie” Thompson (another barber at Scissors), “Mo Money,” a drug dealer and
small-time merchant, and Precious, a nail technician who is in a relationship with Clarence.
Clarence is strict with Woody, and regretful that his son is not more successful. (Id. pp. 9-11.)

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The FAC does not distinguish between the Script and the Recording when discussing the
allegedly copyrighted elements of Scissors.
2
Plaintiff moved for leave to submit a DVD comparison of the two works that was not
properly attached to the appropriate affidavit, which motion is granted. (Docket entry no. 63.)
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The early scenes introduce the audience to the relationships among these
characters, and it is not until Act I, Scene V, that we are introduced to Job. (Id. p. 20.) Job’s
religiosity is immediately made clear: he talks about attending nightly services (id. p. 23) and
plays Gospel music in the barbershop (id. p. 26). We are also soon introduced to Bishop
Jackson, a local priest. (Id. p. 27.) Job is in a relationship with the Bishop’s daughter Angela, of
which the Bishop does not approve, since the Bishop would prefer Angela to “marry a
respectable saved businessman like her father.” (Id. p. 29.) Job and the Bishop argue, and after
the Bishop leaves, Job sings a Gospel song about the importance of forgiveness titled “Lord bless
them anyhow.” (Id. pp. 29-31.) After the confrontation between Job and the Bishop, Clarence
tells Job that the “Bishop knows a lot of folk” and Clarence is afraid of losing business, and so
Job can no longer work at Scissors. (Id. p. 32.) Shortly after this conversation, at the end of Act
I, we learn that Job’s family was in a car accident with Bishop Jackson. (Id. p. 33.)
Act II is set two months later, with Job’s father in a coma after the accident and
Job worried about the lawsuit Bishop Jackson filed over the accident. (Id. p. 34.) Job and Mo
Money discuss Bishop Jackson’s greed, and how he lacks compassion despite being a “man of
God.” (Id. pp. 34-35.) Following the parallel with the Biblical character, Job is forgiving of
Bishop Jackson’s flaws and confident that “God puts no more on us than we can bare [sic].” (Id.
p. 35.) Mo Money tries to persuade Job to ask for his job at Scissors back and earn a living, but
Job responds by quoting a verse from the Bible and telling Mo Money that he is not concerned
about material possessions. (Id. pp. 35-37.)
Back at Scissors, Clarence and Precious argue over Job’s firing, with Precious
deciding to leave Clarence because of how he treated Job. (Id. pp. 40-42.) After Precious
leaves, Clarence’s son Woody comes into Scissors and asks Clarence for money. (Id. p. 43.) As

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the two argue, Job passes by, sees the argument, and walks into the barbershop to intercede. (Id.
p. 44.) They begin to fight, and Clarence pulls out a gun to break up the argument, shoots
Woody, realizes what he’s done, and passes out in a chair. (Id. p. 45.) Job calls an ambulance,
but Bishop Jackson walks into the shop and believes Job has just shot Clarence and Woody. (Id.
p. 46.) The Bishop picks up the gun and shoots Job, waking Clarence, who explains the
misunderstanding and takes Job in his arms to get help. (Id. pp. 46-47.)
In the final scenes, we move forward several years. Job and Angela have a child,
and Precious and Clarence are married. (Id. p. 48.) In the final scene, Job greets a customer as
the owner of Scissors, letting him know that the “rules” of the shop are “One! Don’t let the devil
get you down. Two! Know that the battle is not yours it’s the Lords [sic]. Three! Know that
God is good all the time.” (Id. p. 50.) The play ends with the voice of God reciting a verse from
the Book of Revelation. (Id.)
The Recording
The recording presents a similar, and yet substantively different, play. In the
Recording, Job is HIV-positive, and loses his job at Scissors after Clarence learns this fact.
Clarence later learns more about HIV and comes to accept Job, letting him have his job back.
Although the Recording also contains the altercation between Job, Woody, and Clarence, in the
Recording, Clarence beats Woody with a baseball bat in a closet, after which Woody learns his
lesson and becomes an employee of the shop. A prominent plotline in the Recording missing
entirely from the Script involves Eddie, a patron of the barbershop, who is homosexual. Early in
the play, Eddie says he needs to work out his homosexuality with God, and by the play’s end, he
is married to Precious, who is pregnant with his child. As in the Script, there is a significant

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amount of Gospel music throughout the Recording, including a climactic final song during the
curtain call.
Barbershop (2002)
Because Plaintiff claims that the first Barbershop film, released in 2002, is the
only one that directly, rather than derivatively, infringes on Scissors, this discussion will be
limited to that work. (Zavin Decl., Ex. C.)
Barbershop is a comedy film that focuses on a local barbershop run by Calvin, a
barber who inherited the shop from his father. Calvin is not particularly enthusiastic about
running the barbershop, and wants to leave the neighborhood he grew up in, and therefore agrees
to sell the shop to a man named Lester Wallace, who wants to turn the space into a gentleman’s
club. Over the course of the film, however, Calvin realizes the importance of the barbershop to
the African-American community, and tries to back out of his deal with Lester. Lester, however,
will only accept double his money, which Calvin cannot afford. To try to save the barbershop,
Calvin enlists the help of Eddie, one of the older barbers, who spends most of his day talking
with customers rather than working.
In parallel to the main story, the film follows two thieves who steal an ATM
machine from a store near the barbershop. The pair try, and repeatedly fail, to open the ATM,
ultimately leaving it at an auto body shop run by Wallace. The police investigating the theft turn
their attention to one of Calvin’s barbers, an ex-convict named Ricky, who had lent the thieves a
truck without knowing how it would be used. Ricky is arrested, and Calvin uses the proceeds
from the sale of the barbershop to Wallace to bail Ricky out of prison.
Calvin and Ricky then go to see Wallace at the auto body shop, where they come
upon the thieves and Lester. The shop is raided by the police, who catch the actual thieves.

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Wallace agrees to give Calvin his barbershop back, after Calvin threatens to report the stolen car
parts in the auto body shop to the police. Calvin notices a reward sticker on the back of the
stolen ATM, and the film cuts forward two months to show Calvin in his thriving barbershop.
DISCUSSION
“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.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
proper complaint cannot simply recite legal conclusions or bare elements of a cause of action;
there must be factual content plead that “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
A claim of copyright infringement under federal law requires a plaintiff to show
“substantial similarity” between the copyrighted work and the allegedly infringing work. Peter
F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 63 (2d Cir. 2010). A
plaintiff fails to state a claim for copyright infringement if, upon consideration of the complaint
and the works themselves, the court determines that “the similarity between two works concerns
only non-copyrightable elements of the plaintiff’s work, or . . . no reasonable jury, properly
instructed, could find that the two works are substantially similar.” Id. (quoting Warner Bros.
Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983)). Because “the works themselves
supercede and control contrary descriptions of them,” Walker v. Time Life Films, Inc., 784 F.2d
44, 48 (2d Cir. 1986), a court may properly make this determination as a matter of law, prior to
any discovery, because “what is required is only a . . . comparison of the works.” Folio
Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir. 1991). Here, as noted above, the

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works in question – the play Scissors and the Barbershop Works – are appropriately before the
Court in the context of this motion to dismiss.
Accordingly, resolution of the instant motion requires the Court to determine
whether Plaintiff has adequately alleged that a substantial similarity exists between Scissors and
the Barbershop Works. “The standard test for substantial similarity between two items is
whether an ordinary observer, unless he set out to detect the disparities, would be disposed to
overlook them, and regard the aesthetic appeal as the same.” Peter F. Gaito, 902 F.3d at 66
(quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001)) (internal quotation
marks and modifications omitted). The ‘ordinary observer’ in the context of this test is “an
average lay observer,” and the relevant question is whether such an observer “would recognize
the alleged copy as having been appropriated from the copyrighted work.” Knitwaves, Inc. v.
Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995) (internal quotation marks omitted).
In cases that involve copyrighted works with “both protectable and unprotectable
elements,” this inquiry must be “more discerning.” Peter F. Gaito, 602 F.3d at 66 (quoting
Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994)). In such
cases, the court “must attempt to extract the unprotectable elements from [its] consideration and
ask whether the protectable elements, standing alone, are substantially similar.” Knitwaves, Inc.,
71 F.3d at 1002 (emphasis omitted). Notably, copyright protection does not extend to “‘stock’
themes commonly linked to a particular genre” or “‘scenes a faire,’ that is, scenes that
necessarily result from the choice of a setting or situation.” Walker, 784 F.2d at 50.
When a plaintiff presents the court with a long list of alleged similarities between
the works, the court is “required to determine whether any alleged similarities are due to
protected aesthetic expressions original to the allegedly infringed work, or whether the similarity

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is something in the original that is free for the taking.” Peter F. Gaito, 602 F.3d at 67. In doing
so, however, the court is not required “to dissect the works into their separate components, and
compare only those elements which are in themselves copyrightable.” Id. at 66 (internal
quotation marks and modifications omitted). Rather, the court should be “principally guided by
comparing the contested [work’s] total concept and overall feel with that of the allegedly
infringing work.” Id. (internal quotation marks omitted). In making these determinations, the
court must be guided by the “principle fundamental to copyright law that a copyright does not
protect an idea,” but only the particular expression of that idea fixed in a copyrighted work.
Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996) (internal quotation marks omitted).
Applying these standards, the Court finds, as a matter of law, that Barbershop is
not substantially similar to the Script or the Recording of Scissors. A comparison of the “total
concept and overall feel” of the works makes the differences between them plain. Scissors is, at
its core, a play that conveys a religious message – it draws on Biblical themes, and Gospel songs,
and makes repeated references to faith and the importance of belief. Scissors is a dramatic work,
though one with humorous asides, that deals with complex themes of fatherhood, sickness,
forgiveness, and salvation. The primary dramatic tension in Scissors centers on the travails of
Job, who suffers the loss of his job and his parents and must cope with those problems.
Barbershop, by contrast, is fundamentally a comedic work. It contains no significant religious
themes or subtext. The primary dramatic tension involves the threat of the loss of the
barbershop, and the efforts of Calvin to save an important part of his life and the life of his
community.
Plaintiff seeks to establish substantial similarity through the aggregation of small
elements of Scissors – drawing principally from the Recording – that are comparable in some

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way to Barbershop. As an initial matter, this dissection is not the appropriate means by which
substantial similarity is to be shown. See Peter F. Gaito, 602 F.3d at 66. A consideration of the
elements Plaintiff identifies reveals many of them to be stock elements, or scenes à faire, of a
story set in a barbershop or a workplace in general (three barbers’ chairs; a pay phone on the
wall; one female employee; tension between local businesses). Plaintiff also highlights many
aspects of purported character similarity that are equally stock elements (a father figure who is
wise and kind; a pregnant woman; a sassy and attractive female employee; a troubled young man
wearing a black bandanna).
The few examples Plaintiff provides of direct similarity between Scissors and
Barbershop are insufficient to establish substantial similarity of the overall works. For example,
Plaintiff highlights the fact that both works contain an ensemble dance sequence. However, in
Scissors, there are several such dances, in keeping with the fact that the overall work is a
musical. In Barbershop, the dance sequence bears no relationship to the rest of the work (a point
Plaintiff acknowledges), and in fact highlights the degree to which Barbershop in general is
stylistically dissimilar to Scissors. Plaintiff also focuses on one line of dialogue, comparing
Scissors’ “Know what I think? I think you want to be me” with Barbershop’s “You know what I
think? You wish you were me.” As an initial matter, these lines are different, and so Plaintiff
cannot establish actual copying. Moreover, however, the sum and substance of these lines is not
unique to, or a protectable element of, Scissors – they represent the kind of patter that is a stock
element of storytelling. On the whole, and having considered each of the alleged similarities
Plaintiff identifies and examining the total concept and overall feel of each of the works, the
Court concludes that Scissors and Barbershop are not substantially similar as a matter of law, and

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that no average lay observer would recognize Barbershop as having been appropriated from
Scissors.
Nor has Plaintiff shown that there is “comprehensive non-literal similarity”
between the works. See Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1073 (2d Cir. 1992).
Such similarity can only be proven by a demonstration that the defendant has “appropriated the
fundamental essence or structure of plaintiff’s work.” Id. (internal quotation marks omitted).
There was no such appropriation here. The similarities Plaintiff identifies do not speak to the
fundamental essence of either work – indeed, by picking and choosing among small aspects of
each work in search of comparable elements, Plaintiff only highlights the degree to which the
works are, at their core, highly distinct creative works. See id. (rejecting a seventy-page set of
comparisons between two works as sufficient to demonstrate comprehensive non-literal
similarity).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the First Amended
Complaint is granted. This Memorandum Opinion and Order resolves docket entry nos. 49 and
63. The Clerk of Court is requested to enter judgment in Defendants’ favor and close this case.
SO ORDERED.
Dated: New York, New York
September 5, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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