TANKSLEY v. DANIELS et al

Filing 87

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 4/28/17. 4/28/17 ENTERED AND COPIES EMAILED.(rf, )

Case 2:16-cv-00081-JHS Document 87 Filed 04/28/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CLAYTON PRINCE TANKSLEY,
Plaintiff,

CIVIL ACTION
NO. 16-0081

v.
LEE DANIELS, et al.,
Defendants.

TABLE OF CONTENTS
I.

INTRODUCTION ..................................................................................................... 1

II.

BACKGROUND ......................................................................................................... 2

III.

STANDARD OF REVIEW ........................................................................................ 4

IV.

ANALYSIS .................................................................................................................. 6
A.

Plaintiff Has Not Plausibly Alleged a Claim of Copyright
Infringement Against Fox Defendants ................................................................ 6
1.

Summary of the Two Works .............................................................................. 8

2.

Substantial Similarity Analysis ........................................................................ 18

B.

Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Sharon Pinkenson and the
Greater Philadelphia Film Office ...................................................................... 33

C.

Plaintiff Has Not Plausibly Alleged a Claim of Negligence
Against Sharon Pinkenson and the Greater Philadelphia Film Office ........ 37
1.

Plaintiff’s Negligence Claim is Preempted by the Copyright Act ................... 37

2.

Plaintiff Has Not Plausibly Alleged a Claim of Negligence ........................... 42

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D.

E.

Plaintiff Has Not Plausibly Alleged a Claim of
Negligent Misrepresentation Against Lee Daniels .......................................... 48

F.

V.

Plaintiff Has Not Plausibly Alleged a Claim of
Intentional Misrepresentation Against Lee Daniels ........................................ 43

Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Leah Daniels-Butler .................................... 50

CONCLUSION ......................................................................................................... 51

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OPINION
Slomsky, J.
I.

April 28, 2017

INTRODUCTION
Plaintiff Clayton Prince Tanksley brings this action against numerous Defendants alleging

that they infringed on his copyrighted work titled Cream by creating and using copyrighted
materials to produce the television series Empire. (Doc. No. 45.) The Defendants in this case
can be divided into two identifiable groups. The first one consists of the “Fox Defendants.”
Included in this group are Lee Daniels, Lee Daniels Entertainment, Leah Daniels-Butler, Danny
Strong, Danny Strong Productions, Twenty-First Century Fox, Inc., Fox Entertainment Group,
Inc., Twentieth Century Fox Film Corp., Twentieth Century Fox Television, Inc., Twentieth
Television, Inc., Twentieth Century Fox International, Twentieth Century Fox International
Television, LLC, Twentieth Century Fox Home Entertainment, LLC, Fox Networks Group, Inc.,
Fox Broadcasting Company, Fox Television Stations, Inc., Fox Digital Media, and Fox
International Channels. The second group has two Defendants: Sharon Pinkenson and the
Greater Philadelphia Film Office (“GPFO”).
In Count I of the Second Amended Complaint (“SAC”), Plaintiff alleges that Fox
Defendants directly infringed on his copyrighted work Cream by producing the television series
Empire. (Doc. No. 45 at ¶¶ 42-56.) In Count II, Plaintiff alleges a contributory copyright
infringement claim against Sharon Pinkenson and GPFO, and in Count III, a negligence claim
against the same Defendants. (Id. at ¶¶ 57-70.) In Counts IV and V respectively, Plaintiff
alleges intentional and negligent misrepresentation claims against Lee Daniels. (Id. at ¶¶ 71-79.)
Finally, in Count VI, Plaintiff alleges that Leah Daniels-Butler committed contributory copyright

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infringement. (Id. at ¶¶ 79-86.) Defendants have filed two Motions to Dismiss the SAC in its
entirety. (Doc. Nos. 53-54.) The Motions are now ripe for disposition. 1
II.

BACKGROUND
In 2005, Plaintiff Clayton Prince Tanksley wrote, filmed, and produced a three episode

television series titled Cream about an African American man “who has overcome a
disadvantaged . . . past to achieve financial success in the music industry, only to be exploited by
those closest to him.” (Doc. No. 45 at ¶ 41(A).) On September 23, 2005, Plaintiff obtained a
registration of Cream from the United States Copyright Office. (Registration Number Pau3-002354.) He then set about marketing his copyrighted work with the hope of making a hit television
show or movie. Through these efforts, Tanksley learned about an event called Philly Pitch,
where “writers and potential producers [were presented with] an opportunity to pitch their film
concepts to a panel of entertainment industry professionals who act as ‘judges.’” (Doc. No. 45 at
¶ 31.) The Greater Philadelphia Film Office (“GPFO”) and its Executive Director, Sharon
Pinkenson, organized this event. (Id. at ¶ 32.)

Lee Daniels participated as one of the judges.

(Id. at ¶ 31.)
On April 5, 2008, Tanksley attended Philly Pitch. (Id.)

He presented one copyrighted

work, titled Kung Fu Sissy, to the panel of judges. 2 (See Doc. No. 53, Ex. B.)

After each

1

In reaching a decision, the Court has considered the SAC (Doc. No. 45), Defendants’ Motions
to Dismiss the SAC (Doc. No. 53-54), Plaintiff’s Responses in Opposition (Doc. No. 57-60),
Defendants’ Replies (Doc. Nos. 62-63), oral argument on the Motions to Dismiss (See, e.g.,
Doc. No. 69), and the parties’ supplemental briefing (Doc. Nos. 80-84). The Court has also
considered the DVDs of Cream and Empire, which were attached as exhibits to Plaintiff’s SAC
and Defendants’ Motions to Dismiss, respectively.

2

In the SAC, Plaintiff alleges that he “pitched not just one, but two different works” to the
panel—Kung Fu Sissy and Cream. (Doc. No. 45 at ¶ 34.) This allegation, however, is
disproved by a video recording of Philly Pitch, which clearly shows that Plaintiff pitched only
Kung Fu Sissy to the panel of judges, not Cream. (Doc. No. 53, Ex. B.)
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presenter pitched an idea to the panel, the participants broke for informal discussions and
networking. At that time, Plaintiff alleges that he and Daniels privately discussed Cream. (Doc.
No. 45 at ¶¶ 35-36.) Tanksley gave Daniels several copies of a DVD containing his copyrighted
work, along with a written script of the show. (Id. at ¶ 36.) His goal was to work with Daniels to
produce Cream as a hit television show. (Id.)
Nearly seven years later, on January 7, 2015, Fox aired a pilot episode of its new
television series titled Empire, which features the struggles of Lucious Lyon, a rapper and former
drug dealer who founded one of the world’s leading media companies, Empire Entertainment,
with his ex-wife Cookie Lyon. (Id. at ¶ 37.) This soap opera chronicles Lucious and Cookies’
fight for control over Empire Entertainment, vicariously waged through a succession battle
among their three adult sons. (Doc. No. 53 at 3.)
Lee Daniels and Danny Strong are the creators of Empire. (Id. at ¶ 37.) Plaintiff alleges
that Daniels and Strong surreptitiously took his copyrighted work and were “knowingly and
willfully involved in the unauthorized copying of ‘Cream’” in connection with the creation of
Empire.

(Id. at ¶ 46.)

Plaintiff avers that after the airing of Empire, he was unable to

When considering a motion to dismiss, the court must “accept all factual allegations in the
complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). The court may also consider certain
documents not made part of the complaint. Miller v. Cadmus Communications, No. 09-2869,
2010 WL 762312, at *2 (E.D. Pa. Mar. 1, 2010). For example, a court may consider “an
undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss
if the plaintiff’s claims are based on the document.” Pension Benefit Guaranty Corp. v. White
Consolidated Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
Here, the Court will consider the video recording of Philly Pitch. The video is “undisputably
authentic” and a “document” upon which Plaintiff’s claims are based. Pension Benefit
Guaranty Corp. v. White Consolidated Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Plaintiff
subpoenaed the video directly from Robert Kates, the creator and custodian of the video who
was hired by GPFO to film the event. (Doc. No. 45 at ¶ 35.) In addition, Plaintiff’s claims are
based on his alleged pitch of Cream to the panel of judges and to Lee Daniels in particular.
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successfully market Cream to any television network “due to its striking similarities to
‘Empire.’” (Id. at ¶ 41.)
On January 8, 2016, Plaintiff initiated this action. (Doc. No. 1.) He filed an Amended
Complaint on January 29, 2016. (Doc. No. 3.) On June 17, 2016, Defendants filed two Motions
to Dismiss the Amended Complaint.

(Doc. Nos. 21, 25).

The Court held a hearing on

Defendants’ Motions to Dismiss on June 2, 2016. (Doc. Nos. 41-42.) At the hearing, this Court
afforded Plaintiff another opportunity to amend the Amended Complaint. On August 1, 2016,
Plaintiff filed the Second Amended Complaint (“SAC”). (Doc. No. 45.) Upon the filing of the
SAC, the Court denied Defendants’ pending Motions to Dismiss without prejudice as moot.
(Doc. No. 46.)
On September 30, 2016, Defendants filed another two Motions to Dismiss the SAC.
(Doc. Nos. 53-54.) Plaintiff filed Responses in Opposition on October 30, 2016. (Doc. Nos. 5760.) On November 14, 2016, Defendants filed Replies. (Doc. Nos. 62-63.) This Court held a
hearing on the Motions to Dismiss the SAC. (See Doc. No. 69.)

At the hearing, the Court

granted the parties leave to file supplemental briefs in support of their positions. (Id.) On March
27, 2017, Plaintiff and Defendants filed supplemental briefs on the Motions to Dismiss (Doc.
Nos. 80-84), which is now ripe for a decision.
III.

STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set

forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice” to
defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). “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.” Ethypharm S.A.
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France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Applying the principles of Iqbal and Twombly, the Third
Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part
analysis that a district court in this Circuit must conduct in evaluating whether allegations in a
complaint survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Second, the court should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Finally,
“where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
relief.”
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show”
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (citing
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[W]here 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.’” Iqbal, 556 U.S. at
679. The “plausibility” determination is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id.

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IV.

ANALYSIS
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss the

SAC in its entirety. (Doc. Nos. 53-54.) The Court will address each of Plaintiff’s claims in turn.
A.

Plaintiff Has Not Plausibly Alleged a Claim of
Copyright Infringement Against Fox Defendants

In Count I of the SAC, Plaintiff alleges that the Fox Defendants directly infringed on his
copyrighted work titled Cream by producing the television series Empire. 3 (Doc. No. 45 at ¶¶
42-56.) “Anyone who violates any of the exclusive rights of the copyright owner . . . is an
infringer . . . .” 17 U.S.C. § 501(a). To state a claim of copyright infringement, a plaintiff must
establish ownership of a valid copyright, and unauthorized copying of protectable elements of
the plaintiff’s copyrighted work. Tanikumi v. Walt Disney Co., 616 F. App’x 515, 519 (3d Cir.
2015). Proof of unauthorized copying can be found either in the defendant’s admission or, as is
more often the case, by circumstantial evidence of access and substantial similarity. Dam Things
from Denmark, a/k/a Troll Co. ApS v. Russ Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002).
To determine whether the works are substantially similar, a court “compares the allegedly
infringing work with the original work, and considers whether a ‘lay-observer’ would believe
that the copying was of protectable aspects of the copyrighted work.” 4 Jackson v. Booker, 465 F.
App’x 163, 165 (3d Cir. 2012).

3

As previously noted, Plaintiff refers to the following individuals and entities collectively as the
“Fox Defendants:” Lee Daniels, Lee Daniels Entertainment, Leah Daniels-Butler, Danny
Strong, Danny Strong Productions, Twenty-First Century Fox, Inc., Fox Entertainment Group,
Inc., Twentieth Century Fox Film Corp., Twentieth Century Fox Television, Inc., Twentieth
Television, Inc., Twentieth Century Fox International, Twentieth Century Fox International
Television, LLC, Twentieth Century Fox Home Entertainment, LLC, Fox Networks Group,
Inc., Fox Broadcasting Company, Fox Television Stations, Inc., Fox Digital Media, and Fox
International Channels. (Doc. No. 45 at ¶ 17.)

4

Plaintiff contends that the Court should not compare the two works to assess whether they are
substantially similar at the motion to dismiss stage. It is well established, however, that a
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This inquiry involves distinguishing between protectable and unprotectable aspects of the
copyrighted work. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 208 (3d Cir. 2005). “It is
a fundamental premise of copyright law that an author can protect only the expression of an idea,
but not the idea itself.” Id. Accordingly, a court must discern “the author’s expression and the
idea or theme that he . . . seeks to convey or explore,” because the former is protected and the
latter is not. Id.; see also Winstead v. Jackson, 509 F. App’x 139, 143 (3d Cir. 2013) (citations
omitted) (“The court must determine whether the allegedly infringing work is similar because it
appropriates the unique expressions of the original work, or merely because it contains elements
that would be expected when two works . . . explore the same theme.”).
In analyzing the two works for substantial similarity, the court compares aspects such as
plot, characters, theme, mood, setting, and dialogue. See, e.g., Tanikumi, 616 F. App’x at 521
(comparing plot, theme, setting, and characters, among other aspects, to determine if there was
substantial similarity between the allegedly infringing work and the original copyrighted work).
Without meticulously dissecting the works, a court’s task is to compare the works’ “total concept
and overall feel . . . as instructed [by] good eyes and common sense.”

Peter F. Gaito

Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 66 (2d Cir. 2010).

district court may consider items that are integral to the complaint on a motion to dismiss. See
In re Rockefeller Ctr. Props. Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). Moreover,
“[a]lthough the question of substantial similarity is one of fact, a district court is permitted to
consider the disputed works in deciding a Rule 12(b)(6) motion.” Tanikumi v. Walt Disney
Co., 616 F. App’x 515, 519 (3d Cir. 2015); see also Peter F. Gaito Architecture, LLC v. Simone
Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (explaining that “[w]hen a court is called upon to
consider whether the works are substantially similar, no discovery or fact-finding is typically
necessary, because what is required is only a visual comparison of the works”). In this case,
because Plaintiff’s three episode television series of Cream and Fox Defendants’ Empire series
were integral to the SAC and part of the record before the Court, the Court will consider the
works to determine whether Plaintiff has sufficiently alleged a claim for copyright
infringement.
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Here, Fox Defendants do not contest that Plaintiff held a valid copyright for Cream, and
that Plaintiff has adequately pled access. (Doc. No. 54 at 23 n.12.) Rather, they argue that
Plaintiff has failed to plead facts showing that the two works are substantially similar. (Id. at 23.)
In contrast, Plaintiff argues that he has stated a claim for copyright infringement because the two
works are substantially similar in plot, characters, theme, mood, and setting. 5 (Doc. No. 60 at
10-24.) For reasons that follow, this Court agrees with Fox Defendants that Empire does not
infringe on the expressions embodied in Cream.
1.

Summary of the Two Works

To determine whether Cream and Empire are substantially similar, it is helpful first to
summarize the content of the two works.
a. Summary of Cream
Plaintiff’s copyrighted work titled Cream can be summarized as a television show that
follows the trials and tribulations of Winston St. James, an African-American hip-hop mogul
who runs a record label called Big Balla Records. (Doc. No. 45 at ¶ 41.) Throughout the three
episode series, viewers watch Winston St. James manage artists who seek contracts with the
label, attempt to save his sister (who is actually his daughter) from an abusive relationship,
attend the funeral of his mother, and dismiss his father’s request to co-own the record label.
Additionally, Cream features extensive sexual scenes, in which Winston engages in sex with
multiple partners, contracts herpes, and seeks solace in a prostitute.
Episode one of Cream opens with Winston having sex with his two married assistants,
Tiffany and Chantal. (Cream DVD at 0:44-1:46.) In the next scene, Winston arrives late to a
dance studio where he is scheduled to hear a rap group’s audition. (Id. at 1:48-2:49.) As the rap
5

Plaintiff does not allege that Cream and Empire contain substantially similar sequences of
dialogue. (See Doc. No. 45 at ¶¶ 47(A)-(F).)
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group performs a song, the scene fades to an extended fantasy sequence in which Winston has
sex with yet another woman, Joy, who is a member of the rap group’s entourage. (Id. at 2:505:16.)
The next scene takes a dramatic shift.

Winston’s sister Angelica is beaten by her

boyfriend Shekwan. (Id. at 5:22-6:30.) Shekwan asks Angelica to call Winston and set up an
audition for him. (Id. at 6:30-6:33.) Angelica obliges. (Id. at 6:50-7:30.) Winston receives her
call while in bed with Joy, and initially refuses to give Shekwan an audition, but then tells
Angelica to meet him in his office to discuss it. (Id. at 7:30-8:08.) The next day, Angelica
arrives at Winston’s office wearing sunglasses. (Id. at 8:24-8:38.) Winston asks Angelica to take
off the sunglasses, revealing a black eye, which she presumably got from the abusive Shekwan.
(Id. at 8:39-9:35.) At that moment, Winston decides to give Shekwan an audition after all,
hatching a plot to exact revenge on the man who is hurting his little sister. (Id. at 9:36-10:01.)
After Angelica leaves the office, Winston grabs his groin and calls his secretary, asking that she
schedule an urgent appointment with his doctor. (Id. at 10:18-10:26.)
In the next scene, Shekwan auditions for Winston in the dance studio. (Id. at 10:3812:30.) The audition is horrendous, yet Winston signs Shekwan to the record label anyway. (Id.
at 12:30-12:59.) After the audition, Winston asks Angelica to join him for dinner, so that she is
away from Shekwan.

(Id. at 13:08-13:39.)

Then he gestures to two men in the studio,

suggesting that they can now go forward with a plan to take out revenge on Shekwan. (Id. at
13:40-13:47.)
The scene then shifts to later that night, where Shekwan walks down an alleyway talking
on the phone about his new contract with the record label. (Id. at 13:54-12:59.) As Shekwan
urinates on a dumpster, the two men lurk in the darkness and shoot Shekwan. (Id. at 14:25-

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14:50.) The men then enter the frame and kick him, checking that Shekwan is dead. (Id. at
14:55-15:14.)

The credits roll.

Thereafter, episode one concludes with a public service

announcement from the actress who plays Angelica, who warns of the dangers of domestic
violence and offers resources for those who need help escaping from an abusive relationship.
(Id. at 15:48-16:46.)
Next, in episode two of Cream, Winston learns from Angelica that Shekwan survived the
shooting. (Id. at 17:44-18:19.) He berates the two hit men for failing to finish the job. (Id. at
18:19-19:11.) The next scene shifts to a doctor’s office, where Winston is informed that he has
herpes, a non-fatal disease. (Id. at 19:26-22:03.) The scene cuts to one of Winston’s sexual
partners, Chantal, having sex with her husband. (Id. at 22:06-22:53.) After having sex, Chantal
appears to be in pain, apparently experiencing the symptoms of herpes. (Id. at 23:45-23:56.)
The next day, Winston and Tiffany meet in the office. (Id. at 23:58-24:33.) Tiffany tells
Winston that she and Chantal both are feeling under the weather, suggesting to the audience that
they are all feeling the effects of herpes. (Id.)
In the next scene, Angelica sits beside Shekwan’s hospital bed, praying for his recovery.
(Id. at 25:45-26:22.) Winston arrives and suggests that Angelica leave and get some rest. (Id. at
26:22-27:21.) Alone in the hospital room with Shekwan, Winston threatens the man, even
though he appears to be in a coma. (Id. at 27:41-28:46.) As Winston leaves, however, the
camera cuts to Shekwan opening his eyes. (Id. at 28:46-28:57.)
Back at the office, Winston contemplates his herpes diagnosis, detailing his sexual
encounters through various flashbacks. (Id. at 29:00-29:49.) Looking forlorn, he begrudgingly
takes herpes medication. (Id.) Next, one of Winston’s artists interrupts him in the bathroom
demanding more money for his record sales, but Winston pulls out a gun and refuses to pay him.

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(Id. at 29:53-31:15.) In the meantime, Winston’s mother Nora arrives at the office with Angelo,
who is introduced as Winston’s brother.

(Id. at 31:19-32:54.) Angelo is developmentally

disabled and has trouble speaking coherently, referring to himself in the third person. (Id. at
31:52-32:16.) Nora explains that Winston’s father, Sammy, is currently dating Winston’s exgirlfriend Brenda. (Id.)
In the following scene, Sammy and Brenda are sitting on the couch and talking in
Sammy’s apartment. (Id. at 32:56-34:02.) Through their conversation, the audience learns that
Angelica and Angelo are really Brenda and Winston’s children—not his younger siblings. (Id.)
Winston’s mother raised Angelica and Angelo as her own children after Brenda was sent away
for her drug problem. (Id.) Sammy and Brenda also discuss how Sammy is going to take over
Big Balla Records and Brenda is going to “get her kids back.” (Id.) The scene ends heavily
suggesting that Sammy and Brenda will have sex. (Id. at 34:03-34:21.)
Episode two then concludes with a lengthy public service announcement wherein
Plaintiff Tanksley, the actor who plays Winston, talks about herpes, its statistics and its
symptoms. (Id. at 34:59-36:43.) He recommends getting tested for herpes and other sexually
transmitted diseases. (Id.)
The third and final episode of the Cream pilot opens with a rapper recording in the studio.
(Id. at 38:00-39:13.) While in the studio, Winston receives a call from Angelica, informing him
that Shekwan is “going to make a fully recovery.” (Id. at 39:15-40:15.)
In the following scene, Nora, Winston’s mother, arrives at Sammy’s apartment to
confront him about his affair with Brenda. (Id. at 40:20-41:20.) Nora follows Brenda out of the
apartment, where they have a confrontation in a parking lot. (Id. at 41:20-42:28.) Nora has a
heart attack and dies. (Id.) At her funeral, Sammy demands that he take over the share of Big

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Balla Records that Nora owned (50%), which had not been revealed in the storyline until this
point. (Id. at 43:00-45:22.) Winston refuses and storms off. (Id.)
After a lengthy sequence of Winston driving around, the audience sees him pick up a
prostitute named Regina, and they go to her apartment. (Id. at 45:38-45:22.) However, Winston
is too upset by his mother’s death to have sex. (Id.)
Next, Winston watches as Shekwan records a song called “Biscuits and Gravy,” which is
meant to be comically bad. (Id. at 50:30-52:41.) However, to Winston’s chagrin, the song
becomes a hit. In the following scene, Winston, Chantal, and Tiffany deal with the herpes
outbreak in the office. (Id. at 53:01-54:15.) Chantal admits to Winston that she has herpes, but
Winston denies being infected. (Id.) Therefore, Chantal blames Tiffany for spreading herpes to
the group and they get into an altercation. (Id.) When Chantal later admits to her husband that
she has herpes, he kicks her out of their apartment. Chantal goes to Winston’s home and asks to
stay with him, and the two have sex.
The scene then cuts to Sammy’s apartment, where Brenda and Sammy are engaging in
sexual acts. (Id. at 54:18-55:39.) Sammy is upset that Angelica and Angelo received all of
Nora’s shares of Big Balla Records. (Id.) Sammy decides that he and Brenda should reveal to
Angelica and Angelo who their parents really are. (Id.) In this way, Sammy will be able to
control their shares of Big Balla Records. (Id.)
Later, Sammy and Brenda reveal to Angelica who her parents really are. (Id. at 104:37108:41.) Upset at the news, Angelica calls Winston and says that she never wants to see him
again. (Id.) Distraught, Winston goes to Regina’s apartment, seeking solace in the prostitute.
(Id. at 109:00-111:15.) While there, he reveals the truth about Angelica and Angelo, and his
herpes diagnosis. (Id.) Regina confesses that she also has herpes. (Id.) Minutes later, Chantal’s

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husband stops by Regina’s apartment for a date. (Id.) At that moment, Winston realizes that
Chantal’s husband must have infected her with herpes, and that Chantal must have spread the
disease to Winston and Tiffany. (Id.)
At the conclusion of the pilot, the actress who plays Nora offers a public service
announcement on the benefits of adoption. (Id. at 111:54-112:49.) She says that there is an
“epidemic across America of grandparents rearing grandchildren, in many cases with special
needs, because of the parents’ problems,” and encourages adoption of those children who “don’t
have grandparents to rescue them.” (Id.)
b. Summary of Empire
The allegedly infringing work titled Empire can be summarized as a television soap opera
“reveling in the intrigue, power struggles and opulent excesses of a powerful and wealthy
family”—the Lyons. (Doc. No. 54 at 3.) Empire tells the story of Lucious Lyon and his ex-wife
Cookie Lyon, who rose from a criminal past of drug dealing to create a leading music label and
entertainment company called Empire Entertainment. (Id.) The show details the couples’ fight
for control of the company, and chronicles a King Lear-style succession rivalry among their three
sons—Andre, Jamal, and Hakeem—who each want to succeed their father in running the family
business. (Id.)
The pilot episode of Empire opens with Lucious Lyon, the family patriarch, sitting in a
recording studio dissatisfied with the performance of one of his artists. (Empire DVD at 0:121:33.) As she sings, the scene cuts to stylized flashbacks of Lucious being examined by doctors
who appear to be delivering bad news.

(Id.)

To get the performance he wants, Lucious

emotionally manipulates the artist, telling her to recall the recent death of her brother. (Id. at

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1:44-2:09.) The performance that follows demonstrates how Lucious is both a genius record
producer and a man who is willing to stop at nothing to get what he wants. (Id. at 2:09-2:44.)
The next scene opens with a lavish party on a yacht anchored in New York harbor. (Id. at
2:55-4:30.) Lucious’s sons Jamal and Hakeem improvise an upbeat musical performance, while
their older brother Andre cynically looks down on them for showing off their talent to gain their
father’s affection. (Id.)
The next scene cuts back to Manhattan where, greeted by a throng of paparazzi and fans,
Lucious arrives at the skyscraper which is the headquarters of Empire Entertainment. (Id. at
4:40-4:55.) Lucious’s faithful assistant Becky quickly meets him in the lobby and informs him
of the days urgent matters before Lucious goes to a board meeting. (Id. at 4:55-5:31.) At the
board meeting, he announces that Empire Entertainment has filed to become a publicly traded
company. (Id. at 5:32-6:40.)
Later, Lucious meets with his three sons at his mansion and tells them that he plans to
select one of them to take over Empire Entertainment, but that none of them are ready yet. (Id. at
6:46-8:05.)

Jamal, the middle child, asks “what is this King Lear now?,” suggesting the

narrative for the series. (Id.)
The scene then cuts to prison gates opening and Cookie Lyon, the matriarch of the Lyon
family, exiting the grounds. (Id. at 8:08-8:33.) The audience learns that Lucious’s ex-wife
Cookie was released after serving seventeen years in prison for charges associated with drug
dealing.
At a boxing gym, Andre, the oldest son, tries to convince his father that he should take
over the company. (Id. at 8:40-9:50.) Andre is a graduate of the Wharton School of Business
and has helped his father with handling the finances of the company. (Id.) However, he is not

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musically talented like his two younger brothers. (Id.) Andre tells his father that Cookie was
released from prison. (Id.) Hearing this news, Lucious asks Bunkie, his right hand man, to spy
on her. (Id. at 9:52-10:22.) The audience later learns that Bunkie is in fact Cookie’s cousin, and
has been a long-time friend of the family. Bunkie asks Lucious for $25,000 to cover his
gambling debts, but Lucious refuses to pay for his habit. (Id.)
The next scene opens to Jamal hanging out with his partner Michael in his spacious loft.
(Id. at 10:25-14:00.) Jamal tells Michael about his father’s succession challenge, but believes
that he will never be chosen because Lucious does not approve of his homosexuality and does
not think that an openly gay man can be successful in the world of hip-hop music. (Id.) When
the phone rings, Jamal answers and is shocked to hear that his mother Cookie is outside and
wants to be buzzed in. (Id.) Through flashbacks, the audience learns that in stark contrast to her
ex-husband, Cookie knew that Jamal was gay and has always supported him. (Id.)
The audience then follows Cookie to Empire Entertainment’s headquarters, where she
drops by to visit with Lucious. (Id. at 14:00-17:15.) In Lucious’s opulent office, Cookie
demands half of the company, but Lucious says that this is not possible. (Id.)

During their

argument, the audience learns that Lucious and Cookie were both involved in drug dealing, and
that Cookie pled guilty so that Lucious could pursue his music career and take care of their
children. (Id.) Cookie feels that she is entitled to half of Empire Entertainment for her sacrifice,
in part relying on the fact that the money used to create the company was the same drug money
which landed her in prison. Cookie then asks for an annual salary of $5 million and a position as
head of Artists & Repertoire (“A&R”).

(Id.)

Lucious says that he will support Cookie

financially, albeit not by giving her an annual salary of $5 million, and that he cannot make her
head of A&R because the position is already filled (with his girlfriend, Anika). (Id.)

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Anika enters the office, Cookie casually insults her and warns Lucious that he cannot sweep her
under the rug. (Id.)
Cookie then visits the high rise apartment of Hakeem, her youngest son. (Id. at 17:2418:50.) Hakeem is disrespectful towards her, so she brutally beats him with a broom. (Id.)
Later, Andre and his wife Rhonda discuss Lucious’s succession ploy in their apartment.
(Id. at 24:44-26:00.) Rhonda suggests that Andre pit his two younger brothers against one
another, so that Andre will be the last man standing to take over Empire Entertainment. (Id.) As
part of this strategy, Andre visits Cookie at her new apartment and recommends that she manage
Jamal’s career and make him a star, as a way to get leverage over Lucious. (Id. at 26:00-27:57.)
Cutting to a modern conference room at the company’s headquarters, Cookie interrupts
Lucious’s meeting to tell him that she wants to manage Jamal. (Id. at 27:58-28:30.) She
threatens Lucious by telling him that she will leak to the Securities and Exchange Commission
the fact that Empire Entertainment was created with drug money. (Id. at 28:33-29:56.) Lucious
acquiesces. (Id.)
The pilot then cuts to performances by Jamal and Hakeem, demonstrating their brotherly
bond while also underscoring the mounting tension between them. (Id. at 30:15-36:40.) First,
Jamal performs at a coffee shop. (Id.) Cookie tells him that he should share his talents with the
world and start making hit records, but he initially refuses to let her manage his career. (Id.)
Then, Hakeem has trouble recording a song for Lucious in the studio. (Id.) Hungover from the
night before, he is unfocused and his performance suffers greatly. (Id.) To get back in his
father’s good graces, he visits Jamal, who helps him rework the song into a hit. (Id.)
Later, Bunkie materializes at Lucious’s mansion and demands $3 million. (Id. at 36:4037:44.) He threatens Lucious by saying that he will tell the police about murders Lucious

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committed many years ago. (Id.) Despite this threat, Lucious still refuses to give Bunkie any
money. (Id.)
The following scene shows Hakeem back in the studio performing the reworked song
while Lucious and Jamal watch him perform. (Id. at 37:48-36:40.) Lucious is impressed with
Hakeem’s improvements. (Id.) Even though Hakeem tells his father that Jamal helped him
rework the song, Lucious refuses to recognize Jamal’s talents.

(Id.)

Frustrated by being

constantly overlooked by his father because of his homosexuality, Jamal finally agrees to let
Cookie manage his career. (Id. at 38:51-39:18.)
The following scene shows Lucious at the doctor’s office. (Id. at 39:19-40:50.) The
doctor informs Lucious that he has Amyotrophic Lateral Sclerosis (ALS), a progressive and fatal
neurodegenerative disease (also known as Lou Gehrig’s disease). (Id.) The doctor tells Lucious
he has three years to live, thus informing the audience of Lucious’s rationale for the succession
battle amongst his adult sons. (Id.)
Later, Lucious meets with Bunkie under a highway overpass, where Bunkie is seen
urinating in the river. (Id. at 41:45-43:00.) Because of Bunkie’s attempts to blackmail Lucious,
Luscious shoots Bunkie as they stand face to face. (Id.)
In the final scene of the pilot episode, the entire family returns to the lavish party on the
yacht. (Id. at 45:05-45:55.) Lucious announces Cookie’s return to the company, and that Jamal
and Hakeem will be releasing albums. (Id.) He closes with a toast “to the Empire.” (Id.)
In the remaining episodes of the first seasons of Empire, Lucious reveals to his family
that he has ALS, becomes engaged to Anika, and continues to struggle with naming his
successor. Cookie continues to manage Jamal’s career, and Jamal comes out publicly as being
gay. Andre has a manic episode and requires a brief period of hospitalization, while Hakeem

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leaves and later returns to Empire Entertainment. In the season’s final episode, Lucious learns
that he does not have ALS after all, chooses Jamal as his successor, and is arrested for Bunkie’s
murder.
2.

Substantial Similarity Analysis

As previously noted, to determine whether the works are substantially similar, a court
“compares the allegedly infringing work with the original work, and considers whether a ‘layobserver’ would believe that the copying was of protectable aspects of the copyrighted work.”
Jackson v. Booker, 465 F. App’x 163, 165 (3d Cir. 2012). Keeping in mind the “total concept
and overall feel” of the two works at issue, a comparison based on plot, characters, theme, mood,
setting, and dialogue, even when considered in the light most favorable to Plaintiff that what he
contends is evidence of infringement, demonstrates that there is no substantial similarity between
Cream and Empire. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66
(2d Cir. 2010).
a. Plot
Plaintiff first contends that the plots of Cream and Empire demonstrate that the two
works are substantially similar. (Doc. No. 45 at ¶ 47(B).) Plaintiff specifically alleges that “in
both shows, the male protagonist is forced to contend with family members who are claiming
entitlement and scheming to take over 50% of his record label business, and exploiting his
children in the effort.” (Id.) Plaintiff also claims that less significant plot points about disease,
urination, flashback scenes, female-female altercations, same-sex relationships, and secret
parentage, all support a finding of substantial similarity. (Id.)
General plot ideas are not protected by copyright law. Berkic v. Crichton, 761 F.2d 1289,
1293 (9th Cir. 1985). A succession story is a far too general plot idea, and does not warrant
protection. After viewing Cream and Empire, Plaintiff’s allegation that that the main plot line in
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both works deals with a succession story involving a fight for control over Big Balla Records
(Cream) and Empire Entertainment (Empire) is inaccurate. Moreover, this allegedly similar plot
line is expressed in radically different ways. For instance, in Cream, Winston’s father Sammy,
by all accounts a sideline character, wants to co-own Big Balla Records. When Sammy is
introduced at the end of the second episode, he mentions to Winston’s ex-girlfriend Brenda that
he is going to take his share of Big Balla Records. Then, in the final episode of Cream, Sammy
asks Winston to give him the 50% ownership stake in Big Balla Records that Winston’s deceased
mother held.
In this rendition of a succession story, Winston’s father Sammy seeks to inherit half of a
company which Winston’s mother owned. In other words, Sammy is trying to take for himself
any share of the company which would have been passed to Winston, Angelica, or Angelo (as
Nora’s child and adopted grandchildren). Sammy’s sideline request to share control over Big
Balla Records is overshadowed by major plot lines such as Winston’s herpes diagnosis and the
failed attempt to murder Shekwan, which are highlighted in all three episodes.
Unlike Cream where succession, if at all prevalent, is a side or minor plot line, the heart
of the Empire series is its King Lear-style succession story.

In Empire, Lucious Lyon is

motivated by his terminal illness to choose the right successor to take over the media behemoth
Empire Entertainment. In the pilot episode, he tells his three sons that he will choose one of
them to run the company, but explains that none of them are ready yet. The ensuing succession
rivalry underscores the entire series. It fuels almost every fight and scheme waged in the Lyon
family.
The difference in expression of these stories is stark. In Cream, Winston’s father wants to
inherit Nora’s half of Big Balla Records and ultimately to take away from Winston, Angelica,

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and Angelo their stake in the company. Conversely, in Empire, Lucious wants one of his three
sons to prove that they can run Empire Entertainment and take his place as CEO of the company
once he is gone. There is simply no similar plot line in Cream. For this reason, the plots of the
two works are not substantially similar.
Plaintiff also contends that the two works have plot lines about disease, urination,
flashbacks, female-female altercations, same-sex relationships, and secret parentage, which
warrant a finding of substantial similarity. These purported similarities, however, have even less
in common than the allegedly similar succession story.
Plaintiff asserts that the “identical plots about diseases” demonstrate substantial
similarity. (Doc. No. 45 at ¶ 47(F)(6).) In Cream, Winston is diagnosed with herpes. This
diagnosis of a non-fatal, sexually transmitted disease connects Winston’s many sexual encounters
and allows Plaintiff to issue a public service announcement about sexually transmitted diseases.
In contrast, Empire’s Lucious is diagnosed with ALS, which unlike Winston’s herpes diagnosis,
is a fatal neurodegenerative disease. The discovery of ALS is the spark that ignites the entire
succession rivalry among his three sons, and is the driving force behind the show. It is not meant
to be used for moralistic messaging as Winston’s herpes is used in Cream. In addition, unlike
Winston’s herpes diagnosis, which is discussed at length among several characters, Lucious’s
ALS diagnosis is initially kept secret from his family. 6 Because the expressions of disease are so
different in Cream and Empire, this allegation does not support a finding of substantial similarity.

6

Plaintiff contends that the fact that both Winston and Lucious have white female physicians
shows substantial similarity. (Doc. No. 45 at ¶ 47(F)(2).) White female doctors are
commonplace, both in the real world and on television (e.g., Grey’s Anatomy, ER, and General
Hospital). Moreover, a doctors’ race and gender adds nothing to the storyline in either work.
See Eaton v. National Broad. Co., 972 F. Supp. 1019, 1029 (E.D. Va. 1997), aff’d, 145 F.3d
1324 (4th Cir. 1998) (internal citation omitted) (stating that “basic human traits that certain
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Plaintiff contends that both works involve a scene where a “victim is shot shortly after
urinating outside.” (Doc. No. 45 at ¶ 47(F)(6).) However, these two scenes are expressed in
different ways. In Cream, Winston orders his two henchmen to murder Shekwan after learning
of his abuse of Angelica. Shekwan is seen walking through a parking lot, and briefly urinating
on a dumpster when he hears people lurking in the shadows. The audience then sees Shekwan
receive several gunshot wounds. Only when a grievously injured Shekwan has fallen to the
ground do the two shooters enter the frame.
Unlike Cream, where henchmen shoot and fail to kill the victim, in Empire Lucious
himself commits the murder. Lucious shoots and kills his longtime friend Bunkie, not an enemy
like Shekwan in Cream. Bunkie’s murder occurs because Bunkie tried to blackmail Lucious into
paying him money by threatening to tell the police that Lucious committed other murders long
ago. This murder in Empire is unrelated to a desire to kill an evil and abusive boyfriend.
Additionally, Lucious shoots Bunkie at close range, after speaking to him face to face, whereas
Shekwan’s attempted murderers remain out of the frame during the shooting.

Finally, the

urination scene in Cream takes place in a parking lot, whereas in Empire it occurs on a riverbank
underneath a highway overpass. Given all the differences in expression of the urination scenes
in Cream and Empire, Plaintiff’s allegation that this scene shows substantial similarity is
unconvincing.
As noted, Plaintiff also contends that both works involve flashback scenes, female-female
altercations, same-sex relationships, and secret parentage, which show substantial similarity
between the two works. These assertions, however, are unavailing.

characters share, including age, sex, and occupation, are too general or too common to deserve
copyright protection”).
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Generally speaking, flashback scenes are not protected. Herzog v. Castle Rock Entm’t,
193 F.3d 1241, 1261 (11th Cir. 1999) (noting that flashbacks are familiar devices in film and
fiction). They are commonly used devices in a soap opera style story, and have been used
countless times in television shows and movies.

See id. (citing examples of flashbacks,

including Citizen Kane, which “uses the device to show how different witnesses remember
similar events from Kane’s life in opposing ways; and ‘the Usual Suspects’ where throughout the
film the investigation of a suspected drug deal gone bad is portrayed in flashback.”). In addition,
the flashbacks which appear in the two works here are not similar in expression. Cream’s
flashbacks are in black-and-white and depict images of Winston’s previous sexual encounters,
whereas Empire’s flashbacks are in color and depict scenes such as Lucious’s ALS diagnosis and
his rejection of his son Jamal for dressing in women’s clothing as a young child. Viewed in the
light most favorable to Plaintiff, these flashbacks do not show substantial similarity between
Cream and Empire.
Plaintiff also alleges that Cream and Empire are substantially similar because both works
contain scenes depicting a fight between two women. Such an altercation is a commonly used
device in soap operas to drive the narrative. Fights between two female characters (or “femalefemale altercation”) have occurred on famous soap operas such as Dynasty and Melrose Place.
The scenes in Cream and Empire depicting these fights are not similar in terms of
expression. For example, a female-female altercation in Cream occurs when Brenda has a
physical fight with Nora, Winston’s mother. No similar fight occurs in Empire. Additionally, the
fight between Tiffany and Chantal in Cream is motivated by fear over who spread herpes during
a sexual encounter. In contrast, Empire contains a scene in which a fight breaks out between
Lucious’s ex-wife and his current girlfriend (Cookie and Anika) and is motivated by underlying

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tensions over Lucious, a mutual love interest. No similar altercation occurs in Cream. Because
the fights in Cream and Empire involve different types of characters and are motivated by
varying conflicts, the female-female altercation appearing in Empire is not substantially similar
to those shown in Cream.
Moving to Plaintiff’s allegation that Cream and Empire are substantially similar because
both shows include a same-sex relationship, this argument is unpersausive. First, the existence
of a same-sex relationship, standing alone, is far too general to warrant protection. Same-sex
relationships are commonplace in many soap operas and have been prominent in movies like
Philadelphia, The Birdcage, and Brokeback Mountain. Second, the same-sex relationship in
Cream is radically different in its expression from the expression shown in Empire. Cream
includes an explicit sex scene between Tiffany and Chantal, two female side characters who are
married to men and are having extramarital affairs with Winston. In Empire, one of the main
characters—Jamal—is gay. Empire portrays Jamal’s sexual orientation as a catalyst of the
conflict between Jamal and his father Lucious, and Jamal’s same-sex love interest is his
boyfriend. The committed and loving same-sex relationship in Empire is nothing like the
explicit and fleeting same-sex affair in Cream. Therefore, the mere existence of a same-sex
relationship in Cream and Empire will not support a finding of substantial similarity.
Concluding with Plaintiff’s allegation of secret parentage appearing in both works, this
assertion does not show substantial similarity between Cream and Empire. Revelations about
secret parentage are a mainstay of soap opera melodramas, and have been the driving force in
movies like Star Wars. This general plot device is not a protectable element of Plaintiff’s
copyright.

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Furthermore, this plot device as used in Cream and Empire is not similar in expression.
In Cream, Winston hides the fact that Angelica and Angelo are his children. Instead, Winston
and his parents, Nora and Sammy, pretend that Angelica and Angelo are Winston’s younger
siblings. Nora and Sammy, therefore, raise Angelica and Angelo as their own children. Only in
the final episode of Cream is it revealed that Angelica and Angelo are Winston’s children.
Sammy reveals this fact to Angelica in order to secure her shares of Big Balla Records to take
control of the company.
In contrast, in Empire, Jamal appears to have fathered a child with his ex-wife Olivia, but
it is revealed that Lucious is actually the father of Olivia’s child. Olivia is a side character who
appears with a child named Lola during the sixth episode of Empire’s first season. She later
vanishes, leaving Lola with the Lyon family. In a later episode, Olivia’s current partner Reggie
appears at the Lyon family mansion. The audience learns that Reggie is a violent man who has
been abusing Olivia.

Reggie threatens to shoot and kill Jamal, but Lucious intervenes,

confessing that he fathered the child with Olivia. Lucious also confesses that he promised Olivia
would be a star if she stayed with Jamal to hide his son’s homosexuality. During the tumultuous
standoff, Reggie is shot and killed by another character.
Thus, the two depictions of secret parentage are expressed in radically different ways and
for different reasons. In Cream, Winston’s secret parentage is revealed so that Sammy can take
control of Big Balla Records. In Empire, Lucious’s secret parentage is revealed during a nailbiting standoff to save the life of his son Jamal. For these reasons, Plaintiff’s comparison of
secret parentage appearing in the two works does not support a finding that Empire is
substantially similar to Cream.

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In sum, these general plot devices such as flashback scenes, female-female altercations,
same-sex relationships, and secret parentage are not protectable elements of Plaintiff’s copyright,
and cannot be the basis of the infringement claim against Fox Defendants.
b. Characters
According to Plaintiff, the characters in the two works are a major point of similarity.
(Doc. No. 45 at ¶ 47(D).) Plaintiff contends Lucious, Cookie, and Andre from Empire are
substantially similar to Winston, Brenda, and Angelo from Cream. (Id.) To determine whether
characters are similar, courts look at the “totality of [the characters’] attributes and traits as well
as the extent to which the defendant’s characters capture the total concept and feel of figures in
the plaintiff’s work.” DiTocco v. Riordan, 815 F. Supp. 2d 655, 667 (S.D.N.Y. 2011); Warner
Bros. v. American Broad. Co., 720 F.2d 231, 241 (2d Cir. 1983). Prototypical or stock characters
who display generic traits are “too indistinct to merit copyright protection.” Tanikumi v. Walt
Disney Co., 616 F. App’x 515, 519 (3d Cir. 2015); see also Herzog v. Castle Rock Entm’t, 193
F.3d 1241, 1259 (11th Cir. 1999) (explaining that “characters who keep secrets are part and
parcel of the murder mystery genre and are not protectable”); see also Whitehead v. Paramount
Pictures Corp., 53 F. Supp. 2d 38, 50 (D.D.C. 1999) (finding that “general characteristics such as
black hair, intelligence, patriotism and slight paranoia . . . are not copyrightable and do not
establish substantial similarity”). In fact, the bar for substantial similarity in a character is set
high because only characters who are especially distinctive are entitled to protection. See Hogan
v. DC Comics, 48 F. Supp. 2d 298 (S.D.N.Y. 1999) (finding no substantial similarity between
two young male half-vampire characters named Nicholas Gaunt who both had similar

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appearances, both experienced flashbacks as part of their quest to discover their origins, and both
became killers). 7
First, Plaintiff contends that the two male protagonists, Winston St. James and Lucious
Lyon, are substantially similar. (Doc. No. 45 at ¶ 47(D).) Plaintiff characterizes the two men as
“African-American male[s] in [their] early to mid-40s who rise[] from poverty and [lives] of
crime on the streets of Philadelphia to become the head[s] of a large record label company.” (Id.)
To be sure, there are similarities between Winston and Lucious. However, these similarities are
not copyrightable. The allegation that both characters are African-American men who rise from
poverty and lives of crime to become successful is too general to show substantial similarity.
See Jackson v. Booker, 465 F. App’x 163, 165 (3d Cir. 2012) (finding no substantial similarity
between two characters who “both were African-American males and ex-convicts who become
community activists”). The additional description that the two characters run record labels is not
distinctive enough to show substantial similarity. See Astor-White v. Strong, No. 15-6326, 2016
WL 1254221, at *5 (C.D. Cal. Mar. 28, 2016) (finding that Lucious Lyon from Empire and the
plaintiff’s character who are both African-American “record moguls who rise to power and
become billionaires in the record industry” and who have three children was insufficient to show

7

In another explanation of how two characters are not substantially similar, the court in Rucker
v. Harlequin Enterprises, Ltd. wrote:
The similarities between the characters in Rucker's work and in the Harlequin
work are not legally protectable. Both male protagonists are black-haired, blueeyed, “tall, dark, and handsome” figures. They are wealthy and powerful. The
men sweep the female protagonists off their feet, into a luxurious life. The
women are beautiful, with red hair and green eyes. They are slender, curvaceous,
and young. Their personalities are strong-willed and passionate. These
descriptions suffice to make it clear that these are generic characters in romance
novels.
No. 12-1135, 2013 WL 707922, at *8 (S.D. Tex. Feb. 26, 2013).
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substantial similarity). The facts that both men have straightened hair or dress in button-down
shirts without a tie and occasionally wear a blazer are also too general. See Newt v. Twentieth
Century Fox Film Corp., No. 15-2778, 2016 WL 4059691, at *11 (C.D. Cal. July 27, 2016)
(writing that “the alleged ‘similarities’ in style and dress (e.g., jackets, coats, hats, dresses, hair
styles, eyewear, and jewelry) are too common and generic, and constitute scenes-a-faire that
flow directly from characters in the music industry”); see also Whitehead v. Paramount Pictures
Corp., 53 F. Supp. 2d 38, 50 (D.D.C. 1999) (noting that general characteristics such as black hair,
and intelligence, among other traits, were not copyrightable and could not establish substantial
similarity). Therefore, the character comparison made between Winston and Lucious is too
general to warrant copyright protection.
Furthermore, the overall feel of the two characters is dramatically different. Winston in
Cream is best understood as a sexually promiscuous man who contracts herpes, tries to exact
revenge on a family member’s abusive boyfriend, and lies about the parentage of his children, all
while trying to run a record label. In comparison, Lucious in Empire is an ambitious, wealthy,
and homophobic entertainment magnate who wants to ensure that his most capable son takes
over the family business. He has a complicated personal and professional relationship with his
ex-wife Cookie. For these reasons, the expression and feel of the two characters is dissimilar,
and the comparison drawn between Winston and Lucious does not support a finding of
substantial similarity.
Second, Plaintiff makes a comparison between two women, Brenda and Cookie, as
“female leads with drug backgrounds who had children with the male protagonist in the past and
are now seeking to claim a part of his business.” (Doc. No. 45 at ¶ 47(D).) Yet the differences
between even these characters overshadow their similarities. Brenda is the ex-girlfriend of

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Winston. She is by all accounts a minor or sideline character in Cream, and is not a “lead” as
Plaintiff contends. (See id.) As a former drug addict, Brenda has no relationship with her
children. In fact, she is only introduced to them at the end of the final episode of Cream.
Nowhere in Cream is it ever suggested that Brenda has ever owned an interest in Big Balla
Records. In contrast, Cookie Lyon is a leading character in Empire. She is Lucious’s ex-wife,
and is heavily involved in the lives of her three sons throughout the entire television show. She
is portrayed as a tough and savvy businesswoman who, after her release from prison, is ready to
take back control of half of Empire Entertainment. Notably, she has an extensive background in
the music industry, which is demonstrated initially in a flashback scene in which she helps
Lucious produce his first hit album and then by managing her son Jamal’s music career. Put
simply, there is no similar character to Cookie Lyon who appears in Cream.

These two

characters, therefore, are not substantially similar. In fact, they are not similar at all.
Third, Plaintiff asserts that there are substantial similarities between the characters
Angelo and Andre. (Doc. No. 45 at ¶ 47(D).) The SAC states: “Each of the male leading
characters also ha[ve] a son who is suffering from a mental disorder, both of whom exhibit the
‘quirk’ or symptom of referring to themselves in the third person.” (Id.)

These characters,

however, bear even less resemblance to each other than the other comparisons drawn by Plaintiff.
Angelo appears in only two scenes of the Cream series. He seems to suffer from a significant
developmental disability or mental delay. Other characters refer to Angelo as a “special needs”
person and attribute his disability to his mother’s drug use during pregnancy. In stark contrast to
Angelo’s limitations, Andre in Empire is a highly educated and functioning individual. He is a
Wharton graduate who has continuously helped his father with the finances of a hugely
successful record label and entertainment company. Although he suffers from bipolar disorder,

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this illness has not affected his cognitive abilities. His manic episodes arising from his bipolar
disorder are shown in a few scenes, but they are vastly different from Angelo’s overall inability
to function independently as portrayed in Cream.
Plaintiff’s allegation that Angelo and Andre have the “quirk” of referring to themselves in
the third person overstates the importance of this characteristic, and does not show an
appreciable similarity. (Id.)

One of the only times Angelo speaks is in the second episode of

Cream when he is first introduced to the audience.

He cannot speak full sentences and

repeatedly says “Angelo in the house.” In contrast, Andre has no problem speaking to others and
presenting important matters at board meetings for Empire Entertainment. He regularly refers to
himself in the first person, and only refers to himself in the third person during a manic episode.
During this episode, he switches back and forth using the first and third person. These two
scenes alone do not show that Angelo and Andre are substantially similar.
Most tellingly, there are characters with no counterparts featured in Cream and Empire.
What is notably lacking in Cream is the triad of brothers who fight to succeed their father for
control over the family record label. Cream has no counterpart to Andre, Jamal, and Hakeem
who are main characters in Empire. These characters do not appear in Cream, and without them,
there is no substantial similarity.
Given the above discussion demonstrating that the characters of Cream are not
substantially similar to those featured in Empire, this component of the analysis does not
plausibly support a conclusion that the works are substantially similar.

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c. Theme
Next, Plaintiff contends that the themes of Cream and Empire are substantially similar.
(Doc. No. 45 at ¶ 47(A).) Specifically, Plaintiff asserts that both Cream and Empire are soap
opera dramas which “focus on an African-American male who has overcome a
disadvantaged/criminal past to achieve financial success in the music industry only to be
exploited by those closest to him.” (Id.) However, this general theme is not copyrightable. See
Winstead v. Jackson, 509 F. App’x 139, 144 (3d Cir. 2013) (explaining that two works that
explored the same theme about life on “the streets” necessarily contained similar elements of
“the story of an angry and wronged protagonist who turns to a life of violence and crime” and
that “this story has long been part of the public domain.”); see also DiTocco v. Riordan, 815 F.
Supp. 2d 655, 670 (S.D.N.Y. 2011), aff’d 496 F. App’x 126 (2d Cir. 2012) (finding that stock
themes such as “the development of an adolescent man through a series of tests,” bravery,
independence and “mythology affect[ing] the real world” were not protectable).
The idea of an African-American male who rises up from a disadvantaged or criminal
past to achieve success through music is nothing new to storytelling, nor is it a protectable
element of Plaintiff’s work. It is a compelling theme which has played out both in real life and
which has been prominent in many forms of artistic expression. Hip-hop moguls such as Jay-z,
Dr. Dre, and Sean (“Diddy”) Combs are living examples of this remarkable story. Rappers like
Tupac Shakur, Snoop Dogg, Master P, and Kanye West have written prolific rhymes about this
very idea. Movies such as Hustle & Flow and Get Rich or Die Tryin’ depict hip-hop artists
struggling to break out. Biographical movies (or biopics) including Straight Outta Compton and
Notorious dramatize the lives and careers of famous rappers, who achieve overwhelming success
in the music industry despite overcoming staggering obstacles. Moreover, documentaries like

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Tupac: Resurrection, The Carter, and Beats, Rhymes & Life: The Travels of a Tribe Called Quest
also delve into this theme of hip-hop as the product of struggle and the vehicle for achieving
success. Watching people overcome long odds and achieve success thanks to their creative gifts
has strong narrative impact. Watching those same people achieve success through their musical
talents and start a record label is compelling, though not distinctive. Therefore, similarities
alleged between the themes of Cream and Empire are not a protectable element of a copyright.
d. Mood
Next, Plaintiff asserts that the moods expressed in Cream and Empire are substantially
similar because both contain “regular musical interludes.” (Doc. No. 45 at ¶ 47(E).) This
contention, however, does not support a claim of copyright infringement. Musical interludes are
nothing new to film. Televisions shows dating back to The Partridge Family have used musical
numbers to bridge one scene to the next. Such devices can be found in popular contemporary
television shows such as Glee and Nashville. In addition, the expression of musical interludes in
each work is strikingly different. The musical interludes in Cream are performed by minor or
nameless characters, and are used for comedic or entertainment purposes; whereas the musical
interludes in Empire are often performed by central characters. Through these musical numbers,
the audience learns more about the nuances of the character’s desires.

Because musical

interludes themselves are commonly used devices, and the expression of these devices varies
dramatically in the two works at issue here, Plaintiff’s assertion that musical interludes show
substantial similarity is not persuasive.
e. Setting
Plaintiff contends that the settings of Cream and Empire support a finding that the two
works are substantially similar.

(Doc. No. 45 at ¶ 47(C).)

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demonstrating substantial similarity in the settings of the copyrighted work and the allegedly
infringing work may support a finding that a plaintiff has stated a claim for copyright
infringement. Tanikumi v. Walt Disney Co., 616 F. App’x 515, 521 (3d Cir. 2015). Plaintiff
contends that “both ‘Cream’ and ‘Empire’ are based out of or derive its [sic] origin from,
counterintuitively, Philadelphia, which is certainly not known as a hot spot in the recording
industry.” (Doc. No. 45 at ¶ 47(C).) Despite Plaintiff’s contention, Empire is set in New York
City, whereas Cream is based entirely in Philadelphia. Although Lucious and Cookie Lyon are
originally from Philadelphia, representations of the city play out only in flashbacks showing their
criminal past, and in a few scenes where Cookie re-visits the city after her release from prison.
Philadelphia is not the setting of Empire. Thus, Plaintiff’s contention that the two works share
the same setting cannot be the basis for a claim of copyright infringement.
f. Dialogue
Last, Fox Defendants argue that Plaintiff cannot point to any similar dialogue between
Cream and Empire to show substantial similarity. (Doc. No. 54 at 34.) Similar dialogue
appearing in two works is commonly used to support a claim of copyright infringement. See,
e.g., Jackson v. Booker, 465 F. App’x 163, 168 (3d Cir. 2012) (considering lack of similar
dialogue in support of its finding of no substantial similarity between the copyrighted work and
the allegedly infringing work). Lack of any similar dialogue in Cream and Empire, therefore,
weighs in favor of the conclusion that it is not plausible that the two works are substantially
similar.
In conclusion, in viewing the comparisons in the light most favorable to Plaintiff, it is
evident that Cream and Empire contain dramatically different expressions of plot, characters,
theme, mood, setting, dialogue, total concept, and overall feel. Consequently, this Court finds

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that Empire is not substantially similar to Cream. Plaintiff has not stated a claim for copyright
infringement against Fox Defendants. Therefore, this claim, as asserted in Count I, will be
dismissed.
B.

Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Sharon Pinkenson and the
Greater Philadelphia Film Office

Next, Plaintiff contends that Sharon Pinkenson and the Greater Philadelphia Film Office
(“GPFO”) committed contributory copyright infringement stemming from their organization of
Philly Pitch, where Plaintiff met Lee Daniels. (Doc. No. 45 at ¶¶ 57-64.) A party “who, with
knowledge of the infringing activity, induces, causes, or materially contributes to the infringing
conduct of another, may be held liable as a ‘contributory infringer.’” Columbia Pictures Indus.,
Inc. v. Redd Horne, Inc., 749 F.2d 154, 160 (3d Cir. 1984) (quoting Gershwin Publishing Corp. v.
Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). To establish a claim of
contributory infringement, a plaintiff must show: “(1) a third party directly infringed the
plaintiff's copyright; (2) the defendant knew that the third party was directly infringing; and (3)
the defendant materially contributed to or induced the infringement.” Leonard v. Stemtech Int’l
Inc., 834 F.3d 376, 387 (3d Cir. 2016).
Pinkenson and GPFO argue that Plaintiff’s claim fails to satisfy all three elements of a
contributory copyright infringement claim. (Doc. No. 53 at 12-15.) For reasons that follow, the
Court agrees.
Considering the first element of a contributory copyright infringement claim, Pinkenson
and GPFO argue that the contributory copyright infringement claim fails because Plaintiff has
not pled plausible facts showing that a third party directly infringed on his copyrighted work.
(Doc. No. 53 at 12.) In order to claim that a defendant is a contributory infringer, the plaintiff

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“must allege first, that he had registered copyrights that were infringed by a third party.” Parker
v. Google, Inc., 422 F. Supp. 2d 492, 499 (E.D. Pa. 2006), aff’d, 242 F. App’x 833, 837 (3d Cir.
2007). A claim of contributory infringement “cannot stand without plausible allegations of thirdparty direct infringement.” Parker v. Yahoo!, Inc., No. 07-2757, 2008 WL 4410095, at *5 (E.D.
Pa. Sept. 25, 2008) (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
930 (2005)). Because Plaintiff has failed to plead plausible facts showing that Fox Defendants
directly infringed on his copyright of Cream, he cannot state a claim for contributory copyright
infringement against Pinkenson and GPFO. For this reason alone, the contributory copyright
infringement claim can be dismissed.
With respect to the second element of a contributory infringement claim, Pinkenson and
GPFO argue that Plaintiff has not plausibly alleged facts showing that they had any knowledge
of Fox Defendants’ alleged direct infringement of Cream. (Doc. No. 53 at 14.) A plaintiff must
allege facts showing that the defendant had knowledge of the third-party infringement. Leonard,
834 F.3d at 387. This knowledge requirement has been interpreted to include “both those with
actual knowledge and those who have reason to know of direct infringement.” 8 Parker v.
Google, 422 F. Supp. 2d at 499.

8

Defendants argue that the knowledge element of a contributory infringement cause of action
requires actual knowledge, and that constructive knowledge is insufficient. Although
Defendants are correct that the Third Circuit has never expressly held that anything short of
actual knowledge is sufficient to state a claim for contributory copyright infringement, district
courts within the Third Circuit have held that constructive knowledge is sufficient. See Parker
v. Google, 422 F. Supp. 2d 492, 499 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007)
(the knowledge element includes “both those with actual knowledge and those who have
reason to know of direct infringement”); see also Gordon v. Pearson Educ., Inc., 85 F. Supp. 3d
813, 818 (E.D. Pa. 2015) (citation omitted) (“The knowledge requirement has been interpreted
to include both those with actual knowledge and those who have reason to know of direct
infringement.”). Therefore, this Court will analyze the knowledge requirement as including
both actual and constructive knowledge.
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The SAC alleges that Pinkenson and GPFO “provided a venue” by hosting Philly Pitch,
where Plaintiff met Daniels and discussed Cream. (Doc. No. 45 at ¶ 60.) It also asserts that
Pinkenson and GPFO required each contestant to sign a release attesting that he was presenting
an “authentic and genuine” work, but that the release was lacking because it “did not . . . protect
those works from unauthorized use by the judges.” (Doc. No. 45 at ¶ 33.)
These allegations, taken together, fail to show that Pinkenson or GPFO knew or had
reason to know that Daniels or the other Fox Defendants allegedly would infringe on Plaintiff’s
copyright. The SAC is devoid of any facts which would raise an inference that Pinkenson or
GPFO knew or would reasonably know that Daniels was or would later allegedly infringe on the
Cream copyright. “Whether or not Pinkenson and GPFO knew Plaintiff spoke with Daniels at
the event or gave Daniels the ‘Cream Materials’ is of no consequence because the pleading
standard requires Plaintiff allege the Philadelphia Defendants’ knowledge of the purported
infringement.” (Doc. No. 53 at 14.) In addition, the SAC’s allegations regarding the releases,
which guaranteed that each contestant’s work was authentic, lends no support to Plaintiff’s
claims about Pinkenson or GPFOs’ knowledge, either actual or constructive, of alleged thirdparty infringement.
Turning to the third element of a contributory infringement claim, Pinkenson and GPFO
argue that Plaintiff has not plausibly alleged facts showing that they materially contributed to or
induced the infringement. (Id. at 15.) A plaintiff must allege facts demonstrating the defendant’s
material contribution to or inducement of the third-party infringement. Leonard, 834 F.3d at 387.
Material contribution or inducement is “personal conduct that encourages or assists the
infringement.” Gordon v. Pearson Educ., Inc., 85 F. Supp. 3d 813, 819 (E.D. Pa. 2015). The
encouragement or assistance “must bear some direct relationship to the infringing acts, and the

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person rendering such assistance or giving such authorization must be acting in concert with the
infringer.” 3 Nimmer on Copyright § 12.04[A][3][a] (citing Parker v. Google, 422 F. Supp. 2d at
499); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1171 (9th Cir. 2007)
(explaining that “an actor may be contributorily liable . . . if the actor knowingly takes steps that
are substantially certain to result in such direct infringement.”).
For example, in Live Face on Web, LLC v. Control Group Media Co., a plaintiff which
copyrighted “live face on web” packages that were used in conjunction with its proprietary
software sued a licensee of its software for contributory copyright infringement. 150 F. Supp. 3d
489 (E.D. Pa. 2015). The plaintiff alleged that the licensee should be liable for contributory
infringement because it provided the means for visitors to the licensee’s website to download an
unauthorized version of the plaintiff’s copyrighted package. Id. However, the court found that
the complaint failed to plead plausible facts showing material contribution. Id. at 499. It
explained that “simple downloading of the [plaintiff’s packages] onto a computer’s RAM is not
enough for contributory infringement.” Id. This, the court explained, was similar to the “mere
operation of a website business” and did not demonstrate encouragement or assistance to thirdparty infringement. Id.
Like Live Face on Web, LLC,, the SAC here is devoid of plausible facts showing
material contribution. Rather, the SAC alleges only that Pinkenson and GPFO provided a forum
where Plaintiff met Daniels. This is not sufficient to show material contribution or inducement.
See Gordon, 85 F. Supp. 3d at 822 (“[M]erely supplying the means to accomplish infringing
activity is not enough.”); see also Wolk v. Khodak Imaging Network, Inc., 840 F. Supp. 2d 724,
750 (S.D.N.Y. 2012) (citation omitted) (“An allegation that a defendant merely provid[ed] the
means to accomplish an infringing activity is insufficient to establish a claim for contributory

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copyright infringement.”). Organizing an event where Plaintiff meets a third party, who several
years later may have directly infringed on Plaintiff’s work, is not the type of affirmative conduct
which gives rise to liability as a contributory infringer. Because the SAC does not plausibly
allege direct infringement by Fox Defendants, or that Pinkenson or GPFO reasonably should
have known of alleged infringing conduct, or materially contributed to or induced infringement
of the Cream copyright, this claim fails. In sum, Plaintiff’s contributory copyright infringement
claim against Pinkenson and GPFO will be dismissed.
C.

Plaintiff Has Not Plausibly Alleged a Claim of Negligence Against
Sharon Pinkenson and the Greater Philadelphia Film Office

In Count III of the SAC, Plaintiff alleges a negligence claim against Pinkenson and
GPFO in connection with Philly Pitch. (Doc. No. 45 at ¶¶ 65-70.) Specifically, Plaintiff alleges
that Defendants “negligently failed to disclaim liability or otherwise warn participants of the
dangers of unauthorized copying, and negligently failed to obtain appropriate guarantees and
undertakings from the judges in order to protect the original work presented from any kind of
misappropriation.” (Id. at ¶ 69.) Defendants argue to the contrary that the state law negligence
claim is preempted by the Copyright Act. (Doc. No. 53 at 18-21.) In addition, Defendants assert
that Plaintiff has failed to plausibly allege facts showing negligence. (Id. at 21-22.)
1. Plaintiff’s Negligence Claim is Preempted by the Copyright Act
Pinkenson and GPFO argue that Plaintiff’s negligence claim is preempted by the
Copyright Act. (Id. at 18-21.) The Copyright Act expressly preempts all causes of action falling
within its scope, with few exceptions.

Dun v. Bradstreet Software Servs., Inc. v. Grace

Consulting, Inc., 307 F.3d 197, 216-17 (3d Cir. 2002). Section 301(a) of the Copyright Act
provides as follows:

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On and after January 1, 1978, all legal or equitable rights that are equivalent to
any of the exclusive rights within the general scope of copyright as specified by
section 106 in works of authorship that are fixed in a tangible medium of
expression and come within the subject matter of copyright as specified by
sections 102 and 103, whether created before or after that date and whether
published or unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such work under the
common law or statutes of any State.
17 U.S.C. § 301(a). This preemption provision “accomplishes the general federal policy of
creating a uniform method for protecting and enforcing certain rights in intellectual property by
preempting other claims.” Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir. 1995).
Courts have interpreted Section 301(a) to contain a two-step test. Id. Under this test, a
state law claim will be preempted when “(1) the particular work to which the claim is being
applied falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and
103, 9 and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of

9

Section 102 of the Copyright Act provides:
(a) Copyright protection subsists, in accordance with this title, in original works
of authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
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the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106.”10
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004). The first prong

(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation, concept, principle,
or discovery, regardless of the form in which it is described, explained, illustrated,
or embodied in such work.
17 U.S.C. § 102. In addition, Section 103 of the Copyright Act states:
(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting
material employed in the work, and does not imply any exclusive right in the
preexisting material. The copyright in such work is independent of, and does not
affect or enlarge the scope, duration, ownership, or subsistence of, any copyright
protection in the preexisting material.
17 U.S.C. § 103.
10

Section 106 of the Copyright Act provides:
Subject to sections 107 through 122, the owner of copyright under this title has
the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;
(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;
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of this test is called the “subject matter requirement,” and indicates the subject matter of the state
law claim must fall within the subject matter of the Copyright Act. Id. The second prong is
referred to as the “general scope requirement,” and focuses on whether the state law claim
“include[s] any extra elements that made it qualitatively different from a copyright infringement
claim.” Id. Courts within the Third Circuit “take a restrictive view of what extra elements
transform an otherwise equivalent claim into one that is qualitatively different from a copyright
infringement claim.” See, e.g., Tegg Corp. v. Beckstrom Elec. Co., 650 F. Supp. 2d 413, 422
(W.D. Pa. 2008) (holding that civil conspiracy, tortious interference, and conversion claims were
preempted by the Copyright Act).
Here, Plaintiff alleges a state law negligence claim and a contributory copyright
infringement claim against Sharon Pinkenson and GPFO. (Doc. No. 45 at ¶¶ 65-70.) Under the
two-step test, it is clear that the first element or the subject matter requirement is satisfied.
Cream, the work allegedly infringed, falls within the scope of copyright protection. See 17
U.S.C. § 102. The second element, the general scope requirement, however, is contested.
As noted, this second requirement focuses on whether the state law claim includes an
extra element that makes it qualitatively different form the copyright infringement claims.
Briarpatch Ltd., L.P., 373 F.3d at 305. Courts have held that state law negligence claims lack the
“extra element” to avoid preemption. Parker v. Yahoo!, Inc., 2008 WL 4410095, at *6 (E.D. Pa.

(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to display
the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.
17 U.S.C. § 106.
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Sept. 25, 2008). A negligence claim under Pennsylvania law contains four elements: (1) a duty
or obligation recognized by the law; (2) a breach of that duty; (3) a causal connection between
the conduct and the resulting injury; and (4) actual loss or damage resulting in harm to the
plaintiff. Farabaugh v. Pennsylvania Turnpike Comm’n, 911 A.2d 1264, 1272-73 (Pa. 2006).
Here, Plaintiff’s contributory copyright infringement claim alleges:
59. Plaintiff believes, and therefore, avers that Pinkenson and GPFO
failed to institute proper safeguards and otherwise take appropriate measures [to]
properly or adequately ensure that the original creations pitched by participants
during GPFO’s Philly Pitch Event in April 2008 would be protected from
unauthorized copying or other misuse. In particular, but without limitation by
specification, Pinkenson and GPFO failed to disclaim liability or otherwise warn
participants of the dangers of authorized copying, and failed to obtain appropriate
guarantees and undertakings from the judges in order to protect the original work
presented from misappropriation.
60. Furthermore, Plaintiff believes and, therefore, avers that Pinkenson
and GPFO have contributorily infringed upon [Plaintiff’s] copyright by materially
facilitating the direct infringement committed by the Fox Defendants insofar as
they provided the venue that led [Plaintiff] to Daniels and created an environment
where [Plaintiff] was induced and encouraged to share the Cream materials with
Daniels, and Daniels was thereby afforded an opportunity to obtain the Cream
materials.
(Doc. No. 45 at ¶¶ 59, 60.)

Plaintiff’s contributory copyright infringement claim against

Pinkenson and GPFO alleges that these Defendants “failed to institute proper safeguards and
otherwise take appropriate measures to properly or adequately ensure that the original creations
pitched by participants during GPFO’s Philly Pitch Event in April 2008 would be protected from
unauthorized copying or other misuse.” (Id. at ¶ 59.) Similarly, Plaintiff’s negligence claim
alleges that Pinkenson and “had a duty to [Plaintiff] to take appropriate measures in order to
safeguard his legitimate interests in the original works presented at the 2008 Philly Pitch Event,
and to protect those works from misappropriation or misuse.” (Id. at ¶ 66.)

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Both the copyright claim and negligence claim allege that Pinkenson and GPFO should
have, but did not, implement “appropriate measures” to “protect [Plaintiff’s] original work . . .
from any kind of misappropriation.” (Id. at ¶¶ 59, 68-69.) The same allegations are used by
Plaintiff to support both claims.

The gist of Plaintiff’s allegations in both claims is that

Pinkenson and GPFO failed to protect Plaintiff’s copyrighted work from misappropriation by the
judges at Philly Pitch and therefore contributed to the alleged infringement. “The grounds for
the negligence claim are virtually the same as those for the contributory copyright infringement
claim.” (Doc. No. 53 at 20.) Moreover, both claims seek the same relief—“monetary damages
in the form of lost profits and copyright infringement.” (Doc. No. 45 at ¶¶ 63, 70.)

In

conclusion, Plaintiff’s negligence claim against Pinkenson and GPFO covers the same subject
matter as that governed by the Copyright Act and lacks any extra element to avoid preemption.
Therefore, this claim will be dismissed.
2.

Plaintiff Has Not Plausibly Alleged a Claim of Negligence

Next, Pinkenson and GPFO argue that Plaintiff has not plausibly alleged a claim of
negligence in the SAC. (Doc. No. 53 at 21-22.) As discussed, under Pennsylvania law, the
elements of negligence are: (1) a duty or obligation recognized by the law; (2) a breach of that
duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or
damage resulting in harm to the plaintiff. Farabaugh v. Pennsylvania Turnpike Comm’n, 911
A.2d 1264, 1272-73 (Pa. 2006).
Here, Plaintiff contends that “Pinkenson and GPFO had a duty to [Plaintiff] to take
appropriate measures in order to safeguard his legitimate interests in the original works presented
at the 2008 Philly Pitch event, and to protect those works from misappropriation or misuse.”
(Doc. No. 45 at ¶ 66.) Plaintiff asserts that this duty arises from Pinkenson and GPFOs’ “actions

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in establishing conditions (and encouraging participation)” in the event. (Doc. No. 57 at 30.) He
also contends that this duty arises from the releases which guaranteed that each contestant’s work
was authentic and genuine, and that Pinkenson and GPFO should have “protect[ed] those works
from unauthorized use by judges or anyone else.” (Doc. No. 45 at ¶ 33.) This argument,
however, is unavailing. Plaintiff identifies no source of the alleged duty to prepare releases or
protect his copyright from infringement by third parties. (See Doc. No. 53 at 22.) “Even if
Plaintiff could identify such a duty, whatever duty Pinkenson and GPFO owed Plaintiff was no
greater than Plaintiff’s own duty to police his own copyright.” (Id.) Additionally, this nonexistent duty would not have extended to Cream, which was not pitched to the panel of judges,
but rather was only discussed privately between Plaintiff and Daniels. (See Doc. No. 53, Ex. B.)
Because Plaintiff has failed to plausibly allege that Pinkenson and GPFO owed him a duty to
protect his copyright, this negligence claim will be dismissed.
D.

Plaintiff Has Not Plausibly Alleged a Claim of
Intentional Misrepresentation Against Lee Daniels

In Count IV of the SAC, Plaintiff asserts an intentional misrepresentation claim against
Lee Daniels. (Doc. No. 45 at ¶¶ 71-75.) In defending against this claim, Daniels argues that
Plaintiff has failed to plausibly allege facts showing intentional misrepresentation. (Doc. No. 54
at 43-45.) Daniels also submits that this state law claim is preempted by the Copyright Act. 11
(Id. at 42.)

11

Daniels argues that Plaintiff’s state law claims of intentional and negligent misrepresentation
must be dismissed because they are preempted by the Copyright Act. (Doc. No. 54 at 42.) As
previously noted, the Copyright Act expressly preempts all causes of action falling within its
scope, with few exceptions. Dun v. Bradstreet Software Servs., Inc. v. Grace Consulting, Inc.,
307 F.3d 197, 216-17 (3d Cir. 2002). A claim will be preempted by Section 301 of the
Copyright Act when (1) the subject matter of the claims falls within the subject matter of the
Copyright Act, and (2) the asserted state law right is equivalent to those rights granted in
Section 106 of the Copyright Act. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
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305 (2d Cir. 2004). The second part of this two-step test focuses on whether the state law
claim “include[s] any extra elements that make it qualitatively different from a copyright
infringement claim.” Id.
In this case, Plaintiff raises a copyright infringement claim, a state law intentional
misrepresentation claim, and a state law negligent misrepresentation claim against Daniels.
(Doc. No. 45 at ¶¶ 42-56, 71-75.) Under the two-step test, the subject matter requirement is
satisfied because Plaintiff alleges in all three causes of action that Cream, his copyrighted
work, was infringed upon. However, the general scope requirement is contested.
As noted, the general scope requirement focuses on whether the state law claim includes an
extra element that makes it qualitatively different from the copyright infringement claim.
Briarpatch Ltd., L.P., 373 F.3d at 305. Under Pennsylvania law, to establish intentional
misrepresentation, a plaintiff must show:
(1) A representation; (2) which is material to the transaction at hand; (3) made
falsely, with knowledge of its falsity or recklessness as to whether it is true or
false; (4) with the intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) the resulting injury was proximately
caused by the reliance.
Hanover Insurance Co. v. Ryan, 619 F. Supp. 2d 127, 141 (E.D. Pa. 2007) (quoting Heritage
Surveyors & Engineers, Inc. v. National Penn Bank, 801 A.2d 1248, 1250-51 (Pa. 2002)).
Additionally, in Pennsylvania, the elements of a state law negligent misrepresentation claim
are:
(1) a misrepresentation of a material fact; (2) the representor must either know of
the misrepresentation, must make the misrepresentation without knowledge as to
its truth or falsity, or must make the representation under circumstances in which
he ought to have known of its falsity; (3) the representor must intend the
representation to induce another to act on it; and (4) injury must result to the party
acting in justifiable reliance on the misrepresentation.
Weisblatt v. Minnesota Mut. Life Ins. Co., 4 F. Supp. 2d 371, 377 (E.D. Pa. 1998) (citing Gibbs
v. Ernst, 647 A.2d 882, 890 (Pa. 1994)).
Generally speaking, “fraud or negligent misrepresentation claims are generally not preempted
because they involve the element of a statement or misrepresentation that induced the
plaintiff’s reliance and caused damages not attributable to copyright infringement.” Zito v.
Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1027 (N.D. Cal. 2003). However, a fraud or
intentional misrepresentation claim can be “disguised as a copyright infringement claim” if the
sole basis of the fraud claim is that a defendant represented materials as his own. Seng-Tiong
Ho v. Taflove, 648 F.3d 489, 502-03 (7th Cir. 2011) (citing 1 Nimmer & Nimmer §
1.01[B][1][e]). Here, Plaintiff alleges that the statement Daniels made to him at Philly Pitch
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Daniels argues that Plaintiff has not stated a claim for intentional misrepresentation.
(Doc. No. 54 at 43-45.) In Pennsylvania, the elements of an intentional misrepresentation claim
are:
(1) a representation; (2) which is material to the transaction at hand; (3) made
falsely, with knowledge of its falsity or with recklessness as to whether it is true
or false; (4) with the intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) injury resulting [from] and proximately
caused by the reliance.
Yakubov v. GEICO Gen. Ins. Co., No. 11-3082, 2011 WL 5075080, at *2 (E.D. Pa. Oct. 24,
2011) (quoting Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999)). These elements are equivalent to
those of fraud. Square D Co. v. Scott Elec. Co., No. 06-0459, 2008 WL 2096890, at *2 (W.D.
Pa. May 16, 2008). Therefore, the heightened pleading requirements of Federal Rule of Civil
Procedure 9(b) apply. 12 Id.
Daniels argues that Plaintiff’s intentional misrepresentation claim fails because the SAC
does not allege a misrepresentation of a past or present material fact. (Id.) “Although it is wellestablished that fraud consists of anything calculated to deceive, whether by single act or

was a misrepresentation. This extra element of a misrepresentation in both the intentional
misrepresentation and negligent misrepresentation claims is absent from the copyright
infringement claim. In addition, Plaintiff requests relief for “pain and humiliation” in these tort
claims. This relief is not recoverable under the Copyright Act, which provides recovery for
lost profits, injunctive relief, and attorney’s fees. Therefore, these tort claims are not
preempted by the Copyright Act. But this holding is not dispositive of Plaintiff’s intentional
and negligent misrepresentation claims because of the failure to assert an actual
misrepresentation.
12

Federal Rule of Civil Procedure 9(b) provides:
In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.
Fed. R. Civ. P. 9(b).
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combination . . . , it is equally clear that a promise to do something in the future and the failure to
keep that promise, is not fraud.” Greenberg v. Tomlin, 816 F. Supp. 1039, 1054 (E.D. Pa. 1993).
Rather, stating a claim for fraud or intentional misrepresentation “requires that a
misrepresentation of a past or present material fact be pleaded and proved.” Id. (citations
omitted). Although a statement of present intention which is false when uttered may constitute a
misrepresentation of material fact, “non-performance does not by itself prove a lack of present
intent.” See Mellon Bank Corp. v. First Union Real Estate Equity and Mortg. Invs., 951 F.2d
1399, 1410-11 (3d Cir. 1991) (holding that First Union’s repudiation of its promise not to prepay
mortgages held by Mellon Bank was not evidence of fraud in the absence of evidence that First
Union’s original intent was not be abide by the original agreement).
For example, in KDH Electronic Systems, Inc. v. Curtis Tech., Ltd., which involved a
contract dispute over development of a sonar system, the plaintiffs raised counterclaims alleging
in part that the defendants should be liable under a theory of fraudulent misrepresentation for
overstating market sales projections during contract negotiations. 826 F. Supp. 2d 782, 802-03
(E.D. Pa. 2010). The court, however, found that the defendants “merely provided predictions of
future sales” and that the plaintiffs “had not alleged that [defendants] did not intend to meet those
goals.”

Id. at 803.

Such projections were not promises, nor were the projections

misrepresentations of past or present material facts, and thus the fraudulent misrepresentation
claim was dismissed. 13

13

Pennsylvania’s courts have reached similar conclusions. See Krause v. Great Lakes Holdings,
Inc., 563 A.2d 1882, 1188 (Pa. 1989) (finding that the defendant’s alleged oral representation
that it would assume an obligation for another company’s debt in return for a three-year
moratorium on payments and the plaintiffs’ forbearance from immediate legal action
constituted a promise to do something in the future and was not a proper basis for a fraud
action); see also Boyd v. Rockwood Area Sch. Dist., 907 A.2d 1157, 1170 (Pa. Commw. Ct.
2006) (holding that the alleged representation of a teachers’ union president to employees of a
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Here, the SAC alleges “Daniels . . . affirmatively represented to [Plaintiff] that he was
very interested in [Cream] and might well be disposed to proceed further with its development as
a television soap opera series.” (Doc. No. 45 at ¶ 72.) Daniels suggested that he might be
interested in developing Plaintiff’s work. (Doc. No. 45 at ¶ 72.) Daniel’s statement is not a
representation of a past fact. Moreover, the statement is not a misrepresentation of present fact
because he did not guarantee at that point that Cream would be developed in the future. Most
significantly, Daniels did not make any promise to Plaintiff. Simply because Daniels later
changed his mind and lost interest in developing Cream does not mean that his statement was a
misrepresentation of a past or present material fact. See Mellon Bank Corp., 951 F.2d at 1411
(“Statements of intention made at the time of contracting are not fraudulent simply because of a
later change of mind.”).
Like the defendant’s statement in KDH Electronic Systems, Inc., Daniel’s statement that
he “might well be disposed to proceed” in Cream’s development is not a misrepresentation of
past or present material fact. Neither this statement nor anything else in the SAC alleges
plausible facts showing a misrepresentation of a past or present material fact. See Krause v.
Great Lakes Holdings, Inc., 563 A.2d 1182, 1187 (Pa. 1989).

For this reason, Plaintiff’s

intentional misrepresentation claim against Daniels cannot be maintained.

school district who were considering early retirement that the school district would continue to
provide the same health insurance coverage provided in the then-existing collective bargaining
agreement until the employees reached the Medicare eligibility did not amount to a
misrepresentation. It did not constitute fraud, especially since there was no evidence that the
union president actually knew, or should have known, that there would be a change of health
insurance coverage in the next collective bargaining agreement).
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E.

Plaintiff Has Not Plausibly Alleged a Claim of Negligent
Misrepresentation Against Lee Daniels

In Count V of the SAC, Plaintiff raises a negligent misrepresentation claim against Lee
Daniels. (Doc. No. 45 at ¶¶ 71-75.) Daniels argues that Plaintiff has failed to plausibly allege
facts showing negligent misrepresentation. (Doc. No. 54 at 43-45.) Moreover, Daniels asserts
that the Copyright Act preempts this state law claim. (Id. at 42.)
Daniels argues that Plaintiff has not plausibly alleged a claim of negligent
misrepresentation.

(Id. at 43-45.)

Under Pennsylvania law, the elements of negligent

misrepresentation are:
(1) a misrepresentation of a material fact; (2) the representor must either know of
the misrepresentation, must make the misrepresentation without knowledge as to
its truth or falsity or must make the representation under circumstances in which
he ought to have known of its falsity; (3) the representor must intend the
representation to induce another to act on it; and (4) injury must result to the party
acting in justifiable reliance on the misrepresentation.
Azarchi-Steinhauser v. Protective Life Ins. Co., 629 F. Supp. 2d 495, 501 (E.D. Pa. 2009)
(quoting Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994)).

Further, “[a] negligent

misrepresentation claim must be based on some duty owed by one party to another.” AbdulRahman v. Chase Home Fin. Co., No. 13-5320, 2014 WL 3408564, at *5 (E.D. Pa. July 11,
2014) (citing Gibbs, 647 A.2d at 890).
Here, Plaintiff’s allegations fail to state a claim for negligent misrepresentation for two
reasons. First, the SAC fails to allege Daniels owed a duty to Plaintiff. Second, the SAC fails to
plead facts demonstrating that Daniels made a misrepresentation of past or present material fact.
As previously discussed under the negligence claim, no duty on the part of Pinkenson or
GPFO arose from their organization of Philly Pitch. The same applies here to Plaintiff’s
negligent misrepresentation claim against Daniels, one of the judges at the event. Nothing in the

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SAC demonstrates that Daniels owed a duty to Plaintiff. The SAC alleges that Plaintiff met
Daniels at Philly Pitch and that they had a “private conversation” during which they discussed
Cream. (Doc. No. 45 at ¶¶ 34-35.) This conversation, taken alone, does not establish a duty
Daniels owed to Plaintiff in the absence of any additional circumstances from which a duty could
be inferred. See Bucci v. Wachovia Bank, N.A., 591 F. Supp. 2d 773, 783 (E.D. Pa. 2008) (no
duty where the plaintiff failed to allege anything but an arms-length transaction with the
defendant); see also Schnell v. Bank of New York Mellon, 828 F. Supp. 2d 798, 806 (finding that
a mortgage lender acting in its financial interest did not owe a duty to a borrower). Since the
SAC fails to allege a duty owed by Daniels to Plaintiff, this negligent misrepresentation claim
must be dismissed.
In addition, as noted in the discussion of Plaintiff’s intentional misrepresentation claim
against Daniels, the SAC does not allege a misrepresentation of past or present material fact.
Such a misrepresentation also is essential to state a claim of negligent misrepresentation. See
Azarchi-Steinhauser, 629 F. Supp. 2d at 501 (listing “a material misrepresentation of material
fact” as an element required to state a negligent misrepresentation claim). Rather, the SAC
alleges that Daniels “affirmatively represented to [Plaintiff] that he was very interested in
[Cream] and might well be disposed to proceed further with its development as a television soap
opera series.” (Doc. No. 45 at ¶ 72.) Under Pennsylvania law, however, promises to perform
future acts are not misrepresentations unless the promise maker did not intend to fulfill the
promise. Mellon Bank Corp., 951 F.2d at 1409-10. Daniels did not promise to Plaintiff to
perform a future act. Daniels only suggested that he might be interested in developing Plaintiff’s
work. (Doc. No. 45 at ¶ 72.) He did not guarantee that development would happen. Nothing in

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the SAC, therefore, alleges plausible facts showing a misrepresentation of past or present
material fact.
Ultimately, the SAC offers nothing more than conclusory allegations and restatements of
law, all of which are insufficient to plausibly state a claim of negligent misrepresentation.
Because the SAC fails to allege facts showing that Daniels owed a duty to Plaintiff or that
Daniels made a misrepresentation of past or present material fact, the negligent
misrepresentation claim cannot be maintained.
F.

Plaintiff Has Not Plausibly Alleged a Claim of Contributory
Copyright Infringement Against Leah Daniels-Butler

Plaintiff’s final claim is that Leah Daniels-Butler committed contributory copyright
infringement

by

assisting

her

brother,

Lee

Daniels,

in

the

production

of

Empire. (Doc. No. 45 at ¶¶ 79-86). As noted, to state a claim for contributory copyright
infringement, a plaintiff must plead facts showing: “(1) a third party directly infringed the
plaintiff’s copyright; (2) the defendant knew that the third party was directly infringing; and (3)
the defendant materially contributed to or induced the infringement.” Leonard v. Stemtech Int’l
Inc., 834 F.3d 376, 387 (3d Cir. 2016).
Daniels-Butler argues that Plaintiff fails to plead plausible facts to state a claim for
contributory copyright infringement. (Doc. No. 54 at 39-40.) This Court agrees.
Plaintiff contends that the SAC contains facts stating a claim for direct copyright
infringement against Fox Defendants. (Doc. No. 60 at 30.) A claim of contributory infringement
“cannot stand without plausible allegations of third-party direct infringement.” Parker v. Yahoo!,
Inc., 2008 WL 4410095, at *5 (E.D. Pa. Sept. 25, 2008) (citing Metro-Goldwyn-Mayer Studios
Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). As discussed above, Plaintiff has not pled
plausible facts alleging a claim for direct copyright infringement against Fox Defendants.
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Because Plaintiff has failed to plead such facts showing that Fox Defendants directly infringed
on his copyright of Cream, he cannot state a claim for contributory copyright infringement
against Daniels-Butler. For this reason alone, this contributory copyright infringement claim will
be dismissed. 14
V.

CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss (Doc. Nos. 53-54) will be

granted in the entirety. An appropriate Order follows.

14

Plaintiff requested that he be granted leave to further amend the SAC. (Doc. No. 60 at 48.)
Federal Rule of Civil Procedure 15(a) provides that “leave [to amend] shall be freely given
when justice so requires.” Fed. R. Civ. P. 15(a). Among the grounds that could justify a
denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility. In
re Burlington Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997). For example, “a
district court need not grant leave to amend a complaint if ‘the complaint, as amended, would
fail to state a claim upon which relief could be granted.’” Kundratic v. Thomas, 407 F. App’x
625, 630 (3d Cir. 2011) (quoting Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)).
After reviewing the procedural history of this case, it is clear that allowing Plaintiff to amend
his complaint once again would be futile. On January 8, 2016, Plaintiff initiated this action.
(Doc. No. 1.) He filed an Amended Complaint on January 29, 2016. (Doc. No. 3.) On June
17, 2016, Defendants filed two Motions to Dismiss the Amended Complaint. (Doc. Nos. 21,
25). The Court held a hearing on Defendants’ Motions to Dismiss on June 2, 2016. (Doc.
Nos. 41-42.) At the hearing, this Court afforded Plaintiff with another opportunity to amend
the Amended Complaint. On August 1, 2016, Plaintiff filed a Second Amended Complaint
(“SAC”). (Doc. No. 45.) Upon the filing of the SAC, the Court denied Defendants’ pending
Motions to Dismiss without prejudice as moot. (Doc. No. 46.)
On September 30, 2016, Defendants filed two Motions to Dismiss the SAC. (Doc. Nos. 5354.) Plaintiff filed Responses in Opposition on October 30, 2016. (Doc. Nos. 57-60.) On
November 14, 2016, Defendants filed Replies. (Doc. Nos. 62-63.) This Court held a hearing
on the Motions to Dismiss the SAC. (See Doc. No. 69.) At the hearing, the Court granted the
parties leave to file supplemental briefs. (Id.) On March 27, 2017, Plaintiff and Defendants
filed supplemental briefs on the Motions to Dismiss. (See Doc. Nos. 80-84.) Thus, at this
point, there has been not one, but two rounds of motions practice and oral argument on
Defendants’ Motions to Dismiss. Plaintiff has filed three different complaints in this action,
and has had two opportunities to amend the Complaint. Further amendment will not cure the
defects in the claims raised. Consequently, amending the SAC again would be futile and
leave to amend will not be granted.
51