Levi v. Twentieth Century Fox Film Corporation et al

Filing 39

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge M. Hannah Lauck on 3/29/2018. (sbea, )

IN THE UNITED ST ATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TIMOTHY J. LEVI,
Plaintiff,
Civil Action No. 3:16cv129

v.
TWENTIETH CENTURY FOX
FILM CORPORATION, et al.,
Defendants.

MEMORANDUM OPINION

This matter comes before the Comt on two Motions to Dismiss: ( 1) Defendant Twentieth
Century Fox Film Corporation's (" Twentieth Century Fox") Motion to Dismiss the Amended
1

Complaint with Prejudice, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (the
"Twentieth Century Fox Motion to Dismi ss"), (ECF No. 32)2; and, (2) Defendant Robert
Walker, Jr.'s Motion to Dismiss the Amended Complaint with Prejudice (the "Walker Motion to
Dismiss"), also filed pursuant to Rule 12(b)(6), (ECF No. 35).

3

The Court di spenses with oral argument because the materials before it adequately
present the facts and legal contentions, and argument would not aid the decisional process.
Accordingly, the matters are ripe for disposition. The Court exercises jurisdiction pursuant to

1

Rule l 2(b )(6) allows a party to move to dismiss a complaint for " failure to state a claim
upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
2

Twentieth Century Fox provided Levi with appropriate notice pursuant to Roseboro v.
Garrison, 528 F.2d 309,3 10 (4th Cir. 1975). (ECF No. 32.)
3

Walker provided Levi w ith appropriate notice pursuant to Roseboro, 528 F.2d at 3 10.
(ECF No. 35.)

28 U.S.C. § 133 1.4 For the reasons that fo ll ow, the Court will grant the Twentieth Century Fox
Motion to Dism iss and deny the Walker Motio n to Dismiss.

I. Procedural and Factual Background
A.

Factual Background 5

Levi's Amended Complaint arises out of the alleged copyright infringement by the
Twentieth Century Fox television series Empire of his unpublished book, Unity Incorporated:

The Mastermind ("Unity Incorporated") and Walker's alleged copying of Unity Incorporated.
Levi alleges that Empire and Unity Incorporated share "striking similarities" and that the show
"borrows heavily" from Unity Incorporated. (Am. Comp!.,, 1, I 0, ECF No. 29.) Levi
registered Unity Incorporated with the United States Copyright Office in 2008. 6 Empire debuted
in 20 15.
In or about 2007, Levi, a resident of the Commonwealth of Virginia, telephoned Walker
from the Baskerville Correctional Center in Baskerville, Virginia, and asked if Walker would

4

"The district courts shall have o rigi nal jurisdiction of all civi l actions arisi ng under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The Amended Complaint
asserts two counts of copyright infringement under the Copyright Act of 1976, 17 U .S.C. § 101
et seq. (the "Copyright Act").
5

For purposes of the motions to dismiss, the Court will assume the well-p leaded factual
a llegations in the Complaint to be true and w ill view them in the light most favorab le to Levi.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 11 34 (4th Cir. 1993).
6

Levi attaches as an exhibit to his Amended Complaint a copy of the Certificate of
Registration for Unity Incorporated's copyright. Pursuan t to Federal Rule of Civi l
Procedure 10(c), the Court will consider this document as adopted by reference because the
Amended Complaint explicitly references it and it is attached as an exhibit. See Fed. R . Civ.
P. lO(c) ("Adoption by Reference; Exhibits. A statement in a plead ing may be adopted by
reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written
instrument that is an exhibit to a plead ing is a part of the pleading for all purposes."); Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (noting that, on a motion to dismiss,
courts consider documents attached to the complaint as exhibits pursuant to Rule 1O(c)).

2

help him publish Unity Incmporated. Walker agreed. Levi then instructed his mother, Mary
Wilson, to deliver the Unity Incorporated manuscript to Walker's office. Four months after
Walker received the manuscript, Levi asked his mother to go back to Walker' s office and
demand that Walker return the manuscript to her. Following her son' s instructions, Wilson and
her daughter, Cassandra Penn, visited Walker. Walker returned the Unity Incorporated
manuscript to Wilson, but before doing so, he made a copy of Unity Incorporated and kept the
copy in his possession.
Levi asserts that he has lost and will continue to lose substantial revenues and "has
sustained damages" as a result of Twentieth Century Fox and Walker's alleged infringement of
his copyright. (Id.

1 17.)

Levi seeks an injunction enjoining further violations of his copyrights

and $1,500,000 in damages resulting from the " gain, profits, and advantages obtained by
[defendants' ] acts of infringement." (Id. 1120- 2 1.)

B.

Procedural Background

On March 3, 2016, Levi filed a Complaint naming Walker, Twentieth Century Fox, Lee
Daniels, and Danny Strong as defendants, and alleging a single count of copyright infringement
under the Copyright Act. (ECF No. 1.) Daniels, Strong, and Walker all moved to dismiss. (ECF
Nos. 5, 16, 18.) On March 3 1, 201 7, the Court granted Daniels's and Strong's Motions to
Dismiss, finding it lacked personal jurisdiction over them. (ECF Nos. 27, 28.) The Court also
granted Walker's Motion to Dismiss, finding that Levi fa iled to state a claim against Walker, but
granted Levi leave to amend his Complaint. On April 11 , 2017, Levi filed an Amended
Complaint. (ECF No. 29.)

3

Levi ' s Amended Complaint asserts two counts of copyright infringement:

Count One:

Levi brings this count against Walker for violation of 17 U.S .C.
§ 106(1). 7

Count Two: Levi brings this count against Twentieth Century Fox for violation
of 17 U.S .C. § 106(5). 8
Both Walker and Twentieth Century Fox have moved to dismiss Levi's Amended
Complaint. Walker argues that Levi's allegations " fall short of demonstrating that the Plaintiff
owned a valid copyright to his manuscript at the time that Mr. Walker allegedly made a copy of
the manuscript." (Mem. Supp. Walker Mot. Dismiss 3, ECF No. 36.) Twentieth Century Fox
contends that: (I) Levi does not allege that Twentieth Century Fox had access to Unity

Incorporated; and, (2) Empire does not share substantial similarities with Unity lnc01porated.
Levi filed a single response to both Motions to Dismiss. Only Twentieth Century Fox replied.

II. Analysis: Motions to Dismiss
A.

Motion to Dismiss for Failure to State a Claim Standard

" A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofN. C. v. Martin, 980 F.2d 943, 952

7

Section I 06 provides, in relevant part: " [T]he owner of copyright under this title has
the exclusive rights to do and to authorize any of the following: (I) to reproduce the copyrighted
work in copies or phonorecords . . .. " 17 U.S.C. § I 06.
8

Section 106 further provides, in relevant part:

[T]he owner of copyright under this title has the exclusive rights to do and to
authorize any of the following: ... (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 ....
17 U.S.C. § 106.

4

(4th Cir. 1992) (citing SA Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure§ 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a
plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most
favorable to the plaintiff. Matkari, 7 F.3d at 1134; see also Martin, 980 F.2d at 952.
The Federal Rules of Civil Procedure " require[] only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the .. . claim is and the grounds upon which it rests.'" Bell At!. Corp. v. Twombly,
550 U.S. 544,555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations
omitted); see also Ashcroft v. Iqbal, 556 U.S . 662, 679 (2009). Instead, a plaintiff must assert
facts that rise above speculation and conceivability to those stating a claim that is "plausible on
its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S . at 556).
Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the
plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E. l

DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).
"If, on a motion under Rule 12(b)(6) ... , matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under
Ru le 56," and " [a]ll parties must be given a reasonable opportunity to present all the material that
is pertinent to the motion." Fed. R. Civ. P. 12(d); see Laughlin v. Metro. Wash. Airports Auth. ,
149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However,

5

"a court may consider official public records, documents central to plaintiffs claim, and
documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion
into one for summary judgment] so long as the authenticity of these documents is not disputed."

Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LC! Int '!, Inc. ,
190 F.3d 609,618 (4th Cir. 1999); Gasner v. Cty. of Dinwiddie, 162 F.R.D. 280,282
(E.D. Va. 1995)).
B.

Obligation to Construe Pro Se Pleadings Liberally

Federal district courts have a duty to construe prose pleadings liberally. Bracey v.

Buchanan, 55 F. Supp. 2d 416,42 1 (E.D. Va. 1999). That said, a prose plaintiff must
nevertheless allege sufficient facts to state a cause of action. Id. (citing Sada v. Leland Mem '!

Hosp. , 933 F. Supp. 490,493 (D. Md. 1996)). The Court cannot act as a prose litigant' s
"advocate and develop, sua sponte, statutory and constitutional claims" that the litigant fai led to
raise on the face of the complaint. Newkirk v. Circuit Court ofHampton, No . 3:14cv3 72, 2014
WL 4072212, at *1 (E.D. Va. Aug. 14, 20 14).
C.

The Court Will Grant the Twentieth Century Fox Motion to Dismiss

Levi claims that Twentieth Century Fox infringed his copyright by "violating his
exclusive rights," 17 U.S.C. § 501(a), "to display [Unity Incorporated] publicly." 17 U.S.C.
§ I 06(5). The Court will grant the Twentieth Century Fox Motion to Dismiss because Levi's

Amended Complaint fai ls to allege facts sufficient to state all the elements of his claim of
copyright infringement. Levi does not plead facts that plausibly show that Twentieth Century
Fox had actual access to Unity Incorporated or that Empire is substantially similar to it.

6

1.

Copyright Infringement: Legal Standard

"Anyone who violates any of the exclusive rights of the copyright owner as provided by
sections 106 through 122 ... is an infringer of the copyright or right of the author, as the case
may be." 17 U.S.C. § 501 (a). To prove copyright infringement, a plaintiff must show that:
( 1) he or she owned the copyright to the work that was allegedly copied; and, (2) the defendant
copied protected elements of that work. Towler v. Sayles, 76 F.3d 579,581 (4th Cir. 1996)
(citing Feist Pub 'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
To prove copying, a plaintiff may, of course, present direct evidence that the defendant
copied the copyrighted work. However, if the plaintiff possesses no direct evidence of copying,
he or she can create a presumption of copying through indirect evidence by establishing that:
(1) "the defendant had access to the copyrighted work;" and, (2) "the defendant's work is
'substantially similar' to the protected material." Lyons P 'ship, L.P. v. Morris Costumes, Inc. ,
243 F.3d 789, 801 (4th Cir. 2001) (citation omitted).
To prove access, a plaintiff must show that the defendant "had an opportunity to view or
to copy" the copyrighted work. Towler, 76 F.3d at 582 (citing 3 Nimmer on Copyright

§ 13.02[A], at 13- 16 to 13- 18 (1995)). "A mere possibility that such an opportunity could have
arisen will not suffice." Id (citation omitted). Instead, "it must be reasonably possible that the
paths of the infringer and the infringed work crossed." Id.
Proving substantial similarity9 involves a two-part analysis: the plaintiff must show that
the works in question are both "extrinsically" and "intrinsically" similar. Id. at 583-84. To
satisfy the objective "extrinsic" similarity prong, the plaintiff must show that the works share
9

"[A] district court may properly dismiss a copyright claim in the absence of substantial
similarity" on a motion to dismiss. Devil 's Advocate, LLC v. Zurich Am. Ins. Co., 666 F. App' x
256, 263 (4th Cir. 2016).

7

"substantially similar" ideas. Id. at 583. Lists of "'random similarities scattered throughout the
works' [are] ' inherently subjective and unreliable."' Id. at 584 (quoting Litchfield v.

Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984)). Instead, a court looks at the works in their
entirety, searching broadly for similarities in elements of the work, including plot, theme,
dialogue, mood, setting, pace, and sequence. Id. Importantly, in analyzing extrinsic similarity, a
court considers only those similarities that are "original elements" of the copyright, Lyons, 243
F.3d at 801 (emphasis added), and not the "noncopyrightable features" of the works, Universal

Furniture Int 'l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 436 (4th Cir. 2010), as
amended (Aug. 24, 2010).
To satisfy the subjective "intrinsic" portion of the test, the plaintiff must show that the
works are substantially similar in "the expression of [the] ideas" identified in the first, objective
prong. Dawson v. Hinshaw Music, Inc. , 905 F.2d 731, 732-33 (4th Cir. 1990) (emphasis added).
10

Under this prong, courts consider whether the intended audience of the work "could determine
that the works are substantially similar, usually without the aid of expert testimony." Towler, 76
F.3d at 584. In assessing intrinsic similarity, the court focuses on '"the total concept and feel of
the works,' but only as seen through the eyes of the ordinary observer." Lyons P 'ship, L.P., 243
F.3d at 801 (internal quotation marks omitted) (quoting Dawson, 905 F.2d at 733).

10

In this case, the audience is the general movie-going or book-reading public. See
Dawson, 905 F.2d at 736- 37 (noting that "the lay public fairly represents the intended audience"
in most cases and that "a cou1t should be hesitant to find that the lay public does not fairly
represent a work ' s intended audience").

8

2.

Levi Plausibly Pleads Ownership of Copyright

Levi alleges that he owns the copyright to Unity l ncorporaled and attaches the
registration certificate to his Amended Complaint. These facts plausibly establish Levi's
ownership of a copyright for Unity lncorporated. 11

3.

Levi Fails to Plausibly Plead Actual Access

Levi pleads no facts supporting a plausible inference that Twentieth Century Fox had an
opportunity to view or copy Unity Incorporated, nor does he argue this position in his briefing.
Indeed, he admits in his Response to the Motions to Dismiss that he "cannot prove defendants
had access to his work." (Resp. Mots. Dismiss 5, ECF No. 37.) Instead, Levi contends that
because Empire and Unity Incorporated share "striking similarities," the Court can infer access
without direct proof. (Am. Comp!.~ 1; see also Resp. Mots. Dismiss 5.)
Levi's argument proceeds under the "strikingly similar" doctrine, embraced by some
circuits, which allows a plaintiff to raise an inference of access by showing that the two works
are "so strikingly similar as to preclude the possibility of independent creation. " Ferguson v.

Nat 'L Broad. Co., 584 F.2d 111 , 113 (5th Cir. 1978); see also, e.g. , Unicolors, Inc. v. Urban
Outfitters, Inc. , 853 F.3d 980, 988 (9th Cir. 20 17) (inferring copying without actual evidence of
access where the works were '·v irtually identical"); Gasle v. Kaiserman, 863 F.2d 106 1, 1068 (2d
Cir. 1988) (noting that "striking similarity alone can raise an inference of copying" if the
inference is "reasonable in light of all the evidence"). It is unclear, however, whether the Fourth
Circuit has adopted the "strikingly similar" doctrine. See Bouchat v. Bait. Ravens, Inc., 24 1 F.3d
350, 355- 56 (4th Cir. 2001) (endorsing, in dicta, the "strikingly similar" doctrine). But see id.

11

Twentieth Century Fox does not contest that Levi owns a copyright to Unity
Incorporated.

9

at 364 n.9 (King, J., dissenting) ("The majority's adoption of the 'strikingly simi lar' doctrine is
unnecessary dicta, and should accordingly lack precedential value.").
Regardless, because the Court finds that Empire and the Unity Incorporated are not
substantially similar, much less strikingly similar, the Court need not resolve whether this circuit
has adopted the "strikingly similar" doctrine. Even if the "strikingly similar" doctrine applied,
the Court would nonetheless find that Levi fails to state a claim for copyright infringement
against Twentieth Century Fox.

4.

Levi Cannot Show Copying Because He Fails to Plausibly Plead that
Empire and Unitv Incorporated Share Substantial Similarities

As to Twentieth Century Fox, Levi presents no evidence of actual copying, contending
instead that Empire and Unity Incorporated are substantial similar. In contrast, Twentieth
Century Fox posits that the two works "bear virtually no resemblance to one another" and "are
not substantially similar in even one of the extrinsic elements that make up the objective test."
(Mem. Supp. Twentieth Century Fox Mot. Dismiss 21 , ECF No. 33.) The Court finds that Levi
does not plead facts plausibly demonstrating that Empire is "substantially similar" to Unity

Incorporated.
The Court turns first to the "extrinsic" inquiry of the "substantially similar" analysis. In
the Amended Complaint, Levi catalogues a number of alleged similarities relating to the theme,
plot, setting, and characters of the two works. 12 The Court will review the similarities Levi cites
in turn.

12

Twentieth Century Fox contests the factual accuracy of many of the similarities Levi
alleges, contending that "the majority of the purported 'similarities' that Plaintiff identifies in the
[Amended Complaint] do not exist at all in Plaintiff's Manuscript." (Mem. Supp. Twentieth
Century Fox Mot. Dismiss 23.) In ruling on a motion to dismiss for failure to state a claim, the
Court "does not resolve contests surrounding the facts, the merits of a claim, or the applicability

10

a.

Theme

Levi contends that the themes of Empire and Unity lncorporaled are substantially similar.
Specifically, he argues that "[e]ach work has as a core theme of drama centered on the story of
an African American man with a history of violence, and raising himself without a mother and
father from the ghetto and a life of crime into the world of the music industry." (Am. Comp!. 4.)
Levi's characterization of the shared themes- poverty, violence, and the overcoming of
adversity--constitute merely "common themes" not protectable under copyright law. See Eaton

v. Nat '/ Broad. Co., 972 F. Supp. 101 9, 1029 (E.D. Va. 1997), aff'd sub nom. , Eaton v. Nat 'I
Broad. Co, Inc., 145 F.3d 1324 (4th Cir. 1998). Accordingly, Levi's contention that the two
works share themes falls woefully short of showing that the works are substantially similar.
b.

Plot

Levi argues that the plots of Empire and Unity Incorporated are substantially simi lar.
Levi avers that both works "depict[] a friendship formed by three African American men" who
met as teenagers, and the main character in each work "sold drugs and used the money to invest
in a record company." (Am. Comp!. 4.) Levi further asserts that both Empire and Unity

Incorporated share the fo llowing plot elements: (1) A friendship among three men who met in
their teen years, one of whom now owns a record company; (2) the main character, the record
company owner, had murdered four people in his earlier years, establishing him as a "gangster
masquerading as a legitimate businessman;" (3) the main character lures one of the three lifelong
friends to an isolated area and murders him after the relationship between the two becomes

of defenses." Martin, 980 F.2d at 952. Rather, the Court takes as true Levi 's well-pleaded
allegations and views those allegations in the light most favorable to Levi. See id. This factual
dispute is of no moment. The Court finds-even assuming all of Levi's alleged simi larities do
indeed exist- that he still fails to state a claim.

11

strained; and, (4) the third friend, after discovering this betrayal, decides to testify against the
main character in a federal trial. (Id. at 5 (internal quotation marks omitted).)
These alleged commonalities alone are insufficient to demonstrate substantial similarity.
In analyzing plot similarities, com1s must look beyond stock themes and ideas. Moore v.

Lightstorm Entm 't, 992 F. Supp. 2d 543, 556 (D. Md.), ajf'd sub nom. Moore v. Lightstorm
Entm 't, Inc. , 586 F. App'x 143 (4th Cir. 2014). '" [N]o one can own the basic idea for a story.
General plot ideas are not protected by copyright law."' Id. (quoting Berkie v. Crichton, 761
F.2d 1289, 1293 (9th Cir. 1985)). Here, the majority of the plot similarities Levi points tofriendship, murder, revenge-constitute stock themes not protected by copyright law.
Moreover, courts consistently find that works with far more parallel plot elements fail the
substantial similarity requirement. Koufv. Walt Disney Pictures & Television, 16 F.3d 1042,
1044-45 (9th Cir. 1994) (finding no substantial similarity between two works about shrunken
children and the dangers and struggles they faced as a result of their diminished size); Beal v.

Paramount Pictures Corp., 20 F.3d 454, 456-58 (11th Cir. 1994) (finding no substantial
similarity between two works about wealthy foreign princes traveling to America to find a wife,
initially choosing a woman who does not work out, but ultimately finding true love and returning
to their home country); Reyher v. Children 's Television Workshop, 533 F.2d 87, 92 (2d Cir.
1976) (finding no substantial similarity between two works about a child separated from his
mother who has difficulty reuniting with her because his description of her as the "most beautiful
woman in the world" does not match the appearance of his " homely" mother). Accordingly,
Levi fails to allege facts sufficiently demonstrating substantial similarity between the two plots.

12

c.

Setting

Levi contends that the settings of Empire and Unity Incorporated are substantially
similar, arguing that both works "take[] place in an urban city on the east coast, 250 miles apart."
(Am. Comp!. 5.) The fact that the two works both take place in a broadly characterized East
Coast urban environment cannot constitute a substantial similarity. See, e.g., Winstead v.
Jackson, 509 F. App'x 139, 141 (3d Cir. 2013) (finding no substantial similarity between two

works both set in inner-city New Jersey).
d.

Characters

Levi avers that the lead characters of Empire and Unity Incorporated are "especially
distinctive" and substantially similar. (Am. Comp!. 5.) Levi argues that "[b]oth works feature as
the lead character a charismatic light-skinned, African-American man, who grew up without a
mother and father in [his life], and who has risen from the ghetto and a life of drug dealing to
ownership of a record company." (Id.) Moreover, Levi contends that the lead characters in both
works share twenty-nine character traits: "methodical, stylish dressers, manipulative, deceitful,
charming, smart, intelligent, clever, violent, controlling, funny, sinister, sadistic, debonair,
revengeful, flippant, cruel, promiscuous, creative, flamboyant, explosive temper, apathetic,
egocentric, arrogant, clean, neat, confident, driven by money and power[,] and use[] people to
further their agenda." (Id.) Levi cites two additional facts to show similarity between the lead
characters: (1) " [i]n both works the lead character tested three men to ascertain ifthere were any
weakness in them;" and, (2) "the lead character of Empire, an atheist, named his club from the

13

bible 'Leviticus[.'] Leviticus is the third priestly tribe of Levi, and the author' s name is Levi."

13

(Id. at 5-6.)
"It is well-established that ' [c]opyright law provides very limited protection to characters
presented in a creative work. Basic character types are not copyrightable. "' Eaton, 972 F. Supp.
at 1027-28 (quoting Jones v. CBS, Inc., 733 F. Supp. 748, 753 (S.D.N.Y 1990)). '"[O]nly a
uniquely developed character with some degree of novelty is copyrightable."' Id. at I 028
(quoting Jones, 733 F. Supp. at 753). "' [B]asic human traits that certain characters share,
including age, sex, and occupation, 'are too general or too common to deserve copyright
protection."' Id. at 1029 (quoting Sinicola v. Warner Bros. , Inc., 948 F. Supp. 11 76, 1187
(E.D.N.Y. 1996)).
Many of the character traits Levi claims the two main characters share-such as their
race, sex, and occupation- are " basic character traits" unprotected by copyright. See id.
Regarding the li st of twenty-nine character traits Levi contends the main characters in the two

13

In his Response, Levi advances a related argument. He contends that he "secretly
embedded a biblical story" in Unity Incorporated "so if anyone copied his work, he could
sufficiently demonstrate that the infringed material derived" from the book. (Resp. Mots.
Dismiss 7- 8.) Levi explains that he sprinkled the numbers three and twenty-seven, in various
forms, throughout Unity Incorporated to represent "the infamous 'golden calf incident, at the
foot of Mt. Sinai." (Id. at 8; see also Exodus 32: 1-29 (relaying the story of "The Golden Calf').)
Levi argues that Empire similarly uses the number three. (Resp. Mots. Dismiss 8.) Specifically,
he avers that the show includes a group of three friends and the main character has three sons.
(Id.) Additionally, Levi points to the fact that main character names his club "Leviticus," as
evidence of copying because " Leviticus was used in the secret biblical story" embedded in Unity
Incorporated. (Id.)
Even presuming this Court could address arguments newly raised in response, see
Martin, 980 F.2d at 952, Levi's attempt to preemptively expose possibly copyright infringement
through the embedding of a "secret" biblical story in Unity Incorporated is fatally flawed.
Biblical references permeate world literature. Assuming, arguendo, that the incl usion of the
group of three friends and the three sons as well as the club's name in Empire was intended as a
bibl ical allusion, it is at least just as likely- if not more likely- that the creators of Empire based
this reference on the biblical story itself and not Unity Incorporated.

14

works share, at least half of them can reasonably be considered synonyms for the others.
Moreover, providing a litany of adjectives, without more, insufficiently demonstrates that the
main characters exhibit substantial similarity because such a list falls well short of showing that
the traits are " uniquely developed" in the works and "novel" in their portrayal. See Eaton, 972 F.
Supp. at 1028.
Finally, Levi's focus on a single main character from each work also undermines his
argument. While main characters can be a defining component of a story, here, where many
other characters exist in both works, Levi' s focus on the commonalities between only the lead
characters cannot persuasively establish substantial similarity.

e.

Mood

To show the works share the same mood, Levi reiterates his assertion that the shared
urban East Coast setting, featuring a friendship between two African-American men that ends
with one murdering the other, demonstrates substantial similarity between the two works. As
previously explained, these allegations cannot undergird a finding, even plausibly, that Levi has
shown substantial similarity.

f.

List of Allegedlv Common Scenes and Situations

Under a separate heading in the Amended Complaint, Levi catalogs eighteen pairs of
scenes and situations-one from each work-that he contends demonstrate substantial similarity.
These scenes, not listed by Levi in sequential order, include 14: (1) both works make passing
reference to Machiavelli; (2) both works contain a scene in which a law enforcement officer
attempts-successfully in Unity Incorporated and unsuccessfully in Empire-to contact a
14

Lists of random similarities are "unreliable" and insufficient to establish substantial
similarities. Towler, 76 F.3d at 584 (quoting Litchfield, 736 F.2d at 1356). The Court recounts
only a selection of the most persuasive of the eighteen similarities Levi references.

15

witness to a crime; (3) the main character in both works feigns sadness over the death of a close
friend whom the character secretly murdered; (4) two pairs of characters in both works become
engaged and then break up; (5) both works feature a party on a boat attended by people in the
music industry; (6) both works feature a character who hires a private investigator to follow a
romantic partner-a wife in Empire and a girlfriend in Unity Incorporated; (7) GPS trackers are
placed on cars in both works; (8) a character is kidnapped and "refuses to beg for his life" in both
works; and, (9) both works feature "over-zealous" prosecutors with whom their target "toys."
(Am. Comp!. 6-10.)
Despite Levi ' s suggestion otherwise, aspects of most of these alleged similarities

a

constitute "scenes faire ," defined as"' incidents, characters, or settings which, as a practical
matter, are indispensable or standard in the treatment of a given topic."' Eaton, 972 F. Supp. at
1029 (quoting Walker v. Time Life Films, Inc., 6 15 F. Supp. 430,436 (S.D.N.Y. 1985), aff'd, 784

a

F.2d 44 (2d Cir. 1986)). Copyright law does not protect scenes faire and thus the Court does
not consider them in its "substantial similarity" analysis. Id. Moreover, listings of "' random
similarities scattered throughout the works' [are] 'inherently subjective and unreliable."'

Towler, 76 F.3d at 584 (quoting Litchfield, 736 F.2d at 1356). Accordingly, Levi's list of
random, scattered similarities does not, even plausibly, establish substantial similarity.

g.

Levi Fails to Plausibly Allege that the Works are Extrinsically
Similar, and Therefore Does Not State a Claim

For the reasons articulated above, the Court finds that Levi ' s allegations of purported
similarities between Empire and Unity Incorporated fail to satisfy the extrinsic prong of the
"substantial similarities" analysis. Because Levi must show both that the works are extrinsically
and intrinsically similar to show "substantial simi larity," the Court need not reach the question of
whether Levi has pied facts sufficient to show that the two works are intrinsically similar. See

16

Devil 's Advocate, LLC, 666 F. App 'x at 263 (4th Cir. 20 16) ("' [A] district court may grant a
motion to dismiss ... under the extrinsic prong alone. "' (quoting Copeland v. Bieber, 789 F.3d
484,490 (4th Cir. 2015))).
Because Levi has not sufficiently plead "substantial similarity" between the works, he
fails to show that Twentieth Century Fox copied Unity Incorporated, a requisite element of his
copyright claim. Accordingly, Levi fails to state a claim that Twentieth Century Fox infringed
his copyright. The Court will grant the Twentieth Century Fox Motion to Dismiss and dismiss
Count II of the Amended Complaint. Because the Court previously allowed Levi an opportunity
to amend his complaint, a subsequent amendment would be futile as to Count II. Accordingly,
the Court will dismiss Count II of Levi's Amended Complaint with prejudice.
D.

The Court Will Deny the Walker Motion to Dismiss

Levi claims that Walker infringed his copyright by "violating his exclusive rights,"
17 U.S.C. § 501(a), "to reproduce [Unity Incorporated] in copies or phonorecords," 17 U.S.C.

§ 106(1). The Court will deny the Walker Motion to Dismiss because Levi' s Amended
Complaint alleges facts sufficient to state both elements of his claim against Walker. Levi pleads
facts sufficient to plausibly show that: (1) Levi owned a copyright to Unity Incorporated; and,
(2) Walker copied it. See Towler, 76 F.3d at 581.
First, as already discussed, Levi plausibly established ownership of a copyright for Unity

Incorporated. Walker does not contest this allegation in detail. Second, Levi pleads that Walker
had physical access to Unity Incorporated for at least four months and that "Walker made a copy
of [Unity Incorporated] and [the copy] remained in [Walker's] possession." (Am. Campi. 8.)
While Walker correctly notes that Levi presents few facts in support of this claim, the Court
must view the facts favorably to Levi at this stage of the proceedings. Levi's factual allegations
can allow the Court to draw the reasonable inference that Walker "reproduce[d] [Unity

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lncorporatedJ in copies." 15 17 U.S.C. § 106(1). Accordingly, at this early stage of litigation,
Levi has stated a plausible claim that Walker infringed Levi's copyright.

III. Conclusion
For the foregoing reasons, the Court will grant the Twentieth Century Fox Motion to
Dismiss and deny the Walker Motion to Dismiss. An appropriate Order shall issue.

Richmond, Virginia
Date:

3 /7-clli /\cg

15

"A plaintiff is generally permitted to plead facts based on 'information and belief' if
such plaintiff is in a position of uncertainty because the necessary evidence is controlled by the
defendant." Ridenour v. Multi- Color Corp., 147 F. Supp. 3d 452, 456 (E.D. Va. 20 15) (citing
Raub v. Bowen, 960 F. Supp. 2d 602, 6 15 (E.D. Va. 20 13) (noting that although "information
and belief' pleadings are " tenuous at best," such practice is permitted under Rule 8(a) in some
circumstances)).

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