Brown v. Time Warner, Inc. et al

Filing 43

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)

ORIGINAL
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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RANDY BROWN a/k/a SAINT SOLOMON
17 Civ. 2293

Plaintiff,

(LLS)

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
Defendants.
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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.

For the

following reasons, the motion (Doc. No. 31) is granted.
PARTIES
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").

Cartoon Network, which airs a live-action

television series entitled Black Jesus, is a wholly owned
indirect subsidiary of defendant Turner Broadcasting System,
Inc.

("Turner") .

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
named Jesus.

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.
agrees,

Jesus

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
sermons.

Speedy believes Jesus, and sets off to gather as many

people as he can to attend Jesus'

sermon.

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.

Jesus steps

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!"

As

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."

The

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
sky.
2. The Defendants' Live-Action Television Series, Black Jesus

Black Jesus is a live-action television series that airs on
Adult Swim.

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.
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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
water.
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,

Jesus

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
fraud.

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
plan.

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
them.
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
lot.

Season One ends with Jesus being committed to a mental

facility.

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.
STANDARD

"It is a principle fundamental to copyright law that a
copyright does not protect an idea, but only the expression of
an idea.

Similarly, scenes a faire, sequences of events that

necessarily result from the choice of a setting or situation, do
not enjoy copyright protection."
581, 588
omitted).

(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

a

faire.

(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.
1930).
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,

Reyher v.

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
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7 -

trier of fact could find the works substantially similar."
Williams, 84 F.3d at 587

(citation and internal quotation marks

omitted) .
DISCUSSION

This case turns on whether there is a substantial
similarity of protected expression between the two works at
issue.

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
of God.
1. Pl.ot

Mr. Brown contends that the plots are substantially similar
because each "focuses on a Jesus character that engages in unJesuslike

behavior

character

and

which

story."

is

used

to

(Plaintiff's

propel
Brief

at

their
14) .

respective
Mr. Brown

further contends that Black Jesus picks up where "Thank You, Jesus"
left off.

Although these plot elements appear similar in their

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8 -

description, they "prove to be quite dissimilar once examined in
any detail."

Williams, 84 F.3d at 590.

"Thank You,

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.
After

Jesus

sermon,

manipulates

Jesus

lies

his

to his

people to attend the sermon.

father

friend

into

letting

Jesus

lead

a

Speedy so Speedy will gather

While Jesus is delivering the sermon,
Jesus'

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.
Black Jesus,

on the other hand,

Jesus living in Compton,
Christian
methods.

messages

of

follows a flawed modern-day

on a mission to spread the traditional

love

and

kindness

through

untraditional

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.
The

concept

of

an

African American

allegedly "un-Jesuslike" conduct
illustrated

and

expressed

stories in each work.

Jesus

is an abstract

differently

by

who

engages

idea,

entirely

in

which is
different

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
church congregation,
Christ.

to convince them that he is the real Jesus

By contrast,

in Black Jesus,

Jesus

steals manure

and

negotiates with gang members to grow a community garden, in order
to benefit the community while growing marijuana.

Although the

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
copyright.
Courts in the Second Circuit dismiss copyright claims where
there is far greater overlap in plot elements than that presented
here.

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
New

York

City

occur),

aff'd

331

Sheldon Abend Revocable Trust v.
208

(S.D.N.Y. 2010)

F. App'x

Spielberg,

821

(2d Cir.

2009);

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
neighbor) .
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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

copyright infringement.

See Spielberg, 748 F. Supp. 2d at 208.

The

Jesus

in

"Thank

Jesus"

You,

is

the

"short

round,

troublesome" seventeen-year-old son of a preacher who executes a
"sinful scheme" by manipulating his father into letting him deliver
a sermon,

(Compl. Ex. A at 54), whereas the Jesus in Black Jesus

is a tall adult male who engages in certain unconventional acts
but

ultimately

preaches

the

traditional

Christian messages

of

kindness and forgiveness.
Both works also feature a friend of Jesus who schemes to make
quick money.

Those characters,

however,

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
people

who

attend

Jesus'

participates in Jesus'

sermon,

whereas

Fish

in

Black

Jesus

plan to hold a benefit concert to raise

money for the community garden.
There are other well-developed characters in Black Jesus, but
Mr. Brown

does

not

any

allege

characters in the two works.

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11 -

similarities

between

other

3. Setting

"Thank You,

The settings of the two works are dissimilar.
Jesus"

occurs

contrast,

in

Black

a

seemingly

Jesus

takes

rural
place

town
in

called Sill town.

modern-day

By

Compton,

Los

Angeles, an inner-city setting.
4. Themes

Although both works loosely embody religious themes,

their

most prominent themes are not substantially similar.

"Thank You,

Jesus," explores the themes of greed,

and father-

faithlessness,

son relationships.

Black Jesus, on the other hand, uses its inner-

city

comedic

setting

forgiveness,

and

determining

plot
right

to
from

focus

on

wrong,

themes

racism

such

and

as

police

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,
taking

into

account

the

Reyher, 533 F.2d at 91-92.
works

here

differ

"mood,

details,

or

characterization."

The total concept and feel of the two

substantially.

"Thank

You,

Jesus"

is

an

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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Thus,

the

CONCLUSION

The motion for dismissal

(Doc. No. 31) is granted.

So ordered.
Dated: New York, New York
December 6, 2017

LOUIS L. STANTON
U.S.D.J.

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