Brown v. Time Warner, Inc. et al
OPINION & ORDER: re: 31 MOTION to Dismiss, filed by Time Warner, Inc., Turner Broadcasting System, Williams Street Productions, LLC, Adult Swim, Cartoon Network, Inc. The motion for dismissal (Doc. No. 31) is granted, and a s further set forth in this order. Motions terminated: 31 MOTION to Dismiss, filed by Time Warner, Inc., Turner Broadcasting System, Williams Street Productions, LLC, Adult Swim, Cartoon Network, Inc. (Signed by Judge Louis L. Stanton on 12/6/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RANDY BROWN a/k/a SAINT SOLOMON
17 Civ. 2293
OPINION & ORDER
- against TIME WARNER, INC., TURNER
BROADCASTING SYSTEM, ADULT SWIM,
CARTOON NETWORK, INC., WILLIAMS
STREET PRODUCTIONS, LLC, AARON
MCGRUDER, MIKE CLATTENBURG, and
JOHN DOES 1-10
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Defendants Time Warner Inc., Turner Broadcasting System,
Inc., Williams Street Productions, LLC, the Cartoon Network,
Inc., and Adult Swim (collectively the "defendants") move for
dismissal of the copyright infringement complaint on the ground
that the protectable elements of the plaintiff's work are not
substantially similar to the defendants' work.
following reasons, the motion (Doc. No. 31) is granted.
The plaintiff, Randy Brown a/k/a Saint Solomon, is the
author of "Thank You, Jesus," a short story published as part of
a collection that received a copyright on January 11, 1999,
Uncle Sam's Nieces and Nephews.
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Defendant Adult Swim is not a distinct legal entity, but
rather a name given to a television programming service that is
owned and operated by defendant The Cartoon Network, Inc.
Cartoon Network, which airs a live-action
television series entitled Black Jesus, is a wholly owned
indirect subsidiary of defendant Turner Broadcasting System,
Defendant Williams Street Productions, LLC
("Williams Street"), another a wholly owned subsidiary of
Turner, produces and distributes shows, including Black Jesus.
Defendant Time Warner is the parent holding company of Turner.
As far as appears, the individual defendants
(Aaron McGruder and
Mike Clattenburg) have not been served with the complaint.
THE TWO WORKS
Mr. Brown claims that the defendants' television series,
Black Jesus, infringes his copyright in the book containing his
short story, "Thank You, Jesus."
1. Mr. Brown's Short Story, "Thank You, Jesus"
"Thank You, Jesus" is an eighteen-page short story about a
preacher named Reverend Chance and his seventeen-year-old son
Reverend Chance runs a small, rundown church which
he has promised to improve for the past sixteen years. Jesus, a
"short, round, troublesome" African American boy, is a "sinful"
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high school dropout who attends church only so his father will
allow him to use the family car.
The story opens with Jesus sleeping in his father's church,
dreaming that he is actually the Son of God.
When he awakes,
Jesus believes that he is the actual Jesus Christ and that he
Jesus tells his father that
should be in charge of the church.
he thinks it is time to take more responsibility, so his father
suggests that Jesus preach at that night's service.
imagining "pretty women at his beck and call."
Instead of preparing a sermon, Jesus meets his friend
Speedy at the local park.
Fearing that Speedy would think he
was drunk if he told the truth, Jesus tells Speedy that guest
preachers keep ten percent of the donations collected at their
Speedy believes Jesus, and sets off to gather as many
people as he can to attend Jesus'
Jesus then uses the
money his father gave him for the church offering, gas, and
lunch to purchase "a beige gown, a pair of beige sandals, and a
soft, cloth beige crown" to wear that evening.
When Jesus arrives at the church, he is met by crowds of
people expecting to see the actual Jesus Christ.
into the pulpit, and a congregant questions whether Jesus is
"the real Jesus."
One man demands that Jesus perform a miracle
by giving sight to the man's blind brother.
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The blind man
proceeds to tell Jesus that he lost his sight when he drove home
drunk from his job at a brewery.
Jesus, recalling an argument
he once had with Speedy, makes the blind man "see" that
destructive malt liquor is advertised to African American youths
while mellower alcohol is advertised to white wealthy customers.
The blind man exclaims that that he can see what Jesus means,
and the crowd cheers, "It is Jesus!
It really is Jesus!"
the crowd quiets down, rain pours down and lightning strikes the
church, setting the church on fire and burning it to the ground.
When Jesus and his father return home, his father expels
him from the house and Jesus knows that he will "have to pack
and be somewhere else that very night."
The reverend answers a
knock on the front door to find the insurance agent who
previously sold him insurance which covers an "Act of God."
story ends when the insurance agent tells the reverend that the
insurance should cover the cost of rebuilding the church, and
the reverend says, "Thank you, Jesus," while looking up at the
2. The Defendants' Live-Action Television Series, Black Jesus
Black Jesus is a live-action television series that airs on
The series tells the story of a man named Jesus
Christ who believes he is the real Jesus Christ, depicted as an
African American man living in modern-day Compton, Los Angeles.
Jesus preaches the traditional messages of love and forgiveness,
all the while engaging in nontraditional behavior like cursing,
drinking, and smoking marijuana.
However, Jesus performs
miracles, such as healing through touch and turning alcohol into
Jesus is a tall man with long brown hair, who wears a white
gown, brown robe, sandals, and wreath of leather thorns.
has a circle of friends and followers,
including Fish (an ex-
convict), Boonie (an overweight slacker), Ms. Tudi (Boonie's
mother who deals in marijuana), Jason (another slacker), Trayvon
(the most intelligent group member), and Maggie (another woman)
Three other characters- Vic (the manager of Fish's apartment
complex), Lloyd (a homeless man), and Dianne (a detective and
Jason's girlfriend) -make it their mission to expose Jesus as a
Throughout Season One, Jesus regularly preaches to
residents of Compton, although never in a church.
Most of Season One focuses on Jesus carrying out God's plan
to create a community garden in Compton.
Jesus enlists the help
of his friends by promising them that they can grow marijuana
among the vegetables.
Together, they overcome several obstacles
along the way: paying off Mexican gang members who "own" the
garden location, stealing horse manure to use as fertilizer, and
preventing others from ruining the garden while Dianne attempts
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to commit Jesus to a mental institution.
At one point, the
marijuana plants mysteriously die while the vegetables in the
garden flourish, a phenomenon that Jesus attributes to God's
Jesus is proven correct when the police cannot find any
illegal drugs when they search the community garden, and when
the tomatoes have the effects of marijuana on anyone who eats
When a city council member puts the community garden lot up
for sale, Jesus and his friends hold a benefit concert to save
the garden (as God instructed Jesus to do in a dream), but Vic
nonetheless announces that his management company purchased the
Season One ends with Jesus being committed to a mental
Season Two begins with Jesus' release from the mental
facility, and focuses on Jesus' struggle to follow God's
directive to stop engaging in disreputable schemes.
"It is a principle fundamental to copyright law that a
copyright does not protect an idea, but only the expression of
Similarly, scenes a faire, sequences of events that
necessarily result from the choice of a setting or situation, do
not enjoy copyright protection."
(2d Cir. 1996)
Williams v. Crichton, 84 F.3d
(citations and internal quotation marks
For example, elements such as "drunks, prostitutes,
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vermin and derelict cars," as well as "disgruntled, demoralized
police officers and unsuccessful foot chases of fleeing
criminals" in a police story set in the South Bronx were held to
be unprotectable as scenes
Inc., 784 F.2d 44, 50
(2d Cir. 1986)
Walker v. Time Life Films,
When the works are
similar at only an abstract level, the defendant's work does not
infringe, because it is not the ideas but only their techniques
of expression that the copyright law protects:
Upon any work, and especially upon a play, a great
number of patterns of increasing generality will fit
equally well, as more and more of the incident is left
out. The last may perhaps be no more than the most
general statement of what the play is about, and at
times might consist only of its title; but there is a
point in this series of abstractions where they are no
longer protected, since otherwise the playwright could
prevent the use of his 'ideas,' to which, apart from
their expression, his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.
Courts have "emphasized repeatedly that the essence of
infringement lies in taking not a general theme but its
particular expression through similarities of treatment,
details, scenes, events and characterization."
Children's Television Workshop,
533 F.2d 87, 91 (2d Cir. 1976).
Courts dismiss copyright infringement claims before
discovery where the alleged similarity "concerns only
noncopyrightable elements of plaintiff's work or no reasonable
trier of fact could find the works substantially similar."
Williams, 84 F.3d at 587
(citation and internal quotation marks
This case turns on whether there is a substantial
similarity of protected expression between the two works at
Here, no reasonable jury, properly instructed, could
find that (regardless of whether the underlying ideas are
related) the concepts' expressions of "Thank You, Jesus" are
substantially similar to those of Black Jesus.
See Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63
(2d Cir. 2010).
In fact, there are no similarities between the
two works beyond the abstract and unprotected idea of an African
American male protagonist named Jesus who believes he is the Son
Mr. Brown contends that the plots are substantially similar
because each "focuses on a Jesus character that engages in unJesuslike
further contends that Black Jesus picks up where "Thank You, Jesus"
Although these plot elements appear similar in their
description, they "prove to be quite dissimilar once examined in
Williams, 84 F.3d at 590.
Jesus" tells the story of an ungrateful teenage
son's delusion that he is the real Jesus Christ,
which leads to
the destruction and ultimate resurrection of his father's church.
people to attend the sermon.
Speedy so Speedy will gather
While Jesus is delivering the sermon,
lightning strikes the church and burns it to the ground.
father expels Jesus from the house that night,
and then learns
that his insurance will pay to rebuild the church.
on the other hand,
Jesus living in Compton,
follows a flawed modern-day
on a mission to spread the traditional
Its Jesus hero implements God's plan to grow a community
garden to help the Compton community, which as well will help Jesus
and his friends grow marijuana.
In order to grow the garden, Jesus
and his friends must take over a vacant lot, negotiate with gang
members and drug dealers, and steal the necessary supplies.
allegedly "un-Jesuslike" conduct
stories in each work.
is an abstract
In "Thank You, Jesus," Jesus lies throughout
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the story: to his father,
so he can deliver a sermon; to Speedy,
to persuade him to gather a large crowd for the sermon; and to the
to convince them that he is the real Jesus
in Black Jesus,
negotiates with gang members to grow a community garden, in order
to benefit the community while growing marijuana.
works may share the general idea of "un-Jesuslike" behavior, they
develop that idea differently through their respective plots.
Nor would the outcome be different if,
as Mr. Brown argues,
Black Jesus were presented as a continuation of "Thank You, Jesus."
That might misappropriate the idea, but ideas are not protected by
Courts in the Second Circuit dismiss copyright claims where
there is far greater overlap in plot elements than that presented
See, e.g., Mallery v. NBC Universal, Inc., No. 07 Civ. 2250,
2007 WL 4258196 (S.D.N.Y. Dec. 3, 2007)
(both works depict a future
where tragic events like the destruction of landmark buildings in
Sheldon Abend Revocable Trust v.
748 F. Supp. 2d 200,
(a male protagonist confined to his home spies
on neighbors, discovers that a neighbor is a murderer, is attacked
by the murderer, and is vindicated of falsely accusing the guilty
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2 . Characters
Mr. Brown does allege similarities between Jesus and Speedy
in "Thank You, Jesus" and Jesus and Fish in Black Jesus, but that
degree of similarity is
far too general to support a claim of
See Spielberg, 748 F. Supp. 2d at 208.
troublesome" seventeen-year-old son of a preacher who executes a
"sinful scheme" by manipulating his father into letting him deliver
(Compl. Ex. A at 54), whereas the Jesus in Black Jesus
is a tall adult male who engages in certain unconventional acts
kindness and forgiveness.
Both works also feature a friend of Jesus who schemes to make
go about their money-
making plans in different ways: Speedy in "Thank You, Jesus" jumps
at the chance to collect ten percent of the offerings from the
participates in Jesus'
plan to hold a benefit concert to raise
money for the community garden.
There are other well-developed characters in Black Jesus, but
characters in the two works.
The settings of the two works are dissimilar.
called Sill town.
Angeles, an inner-city setting.
Although both works loosely embody religious themes,
most prominent themes are not substantially similar.
Jesus," explores the themes of greed,
Black Jesus, on the other hand, uses its inner-
brutality, and bettering one's community.
5. Total Concept and Feel
The total concept and feel of a work refers to the way in
which an author selects and arranges the elements of the work,
Reyher, 533 F.2d at 91-92.
The total concept and feel of the two
eighteen-page story which takes place over the course of one day.
Black Jesus is a multi-season live-action comedy television series
which takes place over the course of several months.
pace and length of the works are quite different.
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The motion for dismissal
(Doc. No. 31) is granted.
Dated: New York, New York
December 6, 2017
LOUIS L. STANTON
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