259 F. Supp. 3d 271
E.D. Pa.2017Background
- Plaintiff Clayton Prince Tanksley authored and registered a three-episode pilot series titled Cream (2005) and alleges defendants copied its protectable expression to create the Fox series Empire (pilot aired 2015).
- Tanksley met Lee Daniels at a 2008 Philly Pitch event run by the Greater Philadelphia Film Office (GPFO) and organized by Sharon Pinkenson; Tanksley gave Daniels a DVD and script of Cream during a private conversation.
- Plaintiff sued numerous Fox entities, Lee Daniels, Leah Daniels-Butler, Danny Strong, GPFO, and Pinkenson asserting direct and contributory copyright claims, negligence, and misrepresentation theories; the Second Amended Complaint (SAC) is before the court on motions to dismiss.
- The court reviewed the Cream and Empire pilot episodes (exhibits) and applied the Twombly/Iqbal plausibility standard on Rule 12(b)(6) motions.
- The court concluded Plaintiff failed to plausibly allege direct or contributory copyright infringement, negligence, or misrepresentation and dismissed the SAC in its entirety with prejudice (denying further amendment as futile).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct copyright infringement by Fox (Cream v. Empire) | Tanksley: Empire copies protectable expression of Cream (plot, characters, theme, mood, setting, dialogue). | Fox: only generic/stock elements and scenes-à-faire overlap; no substantial similarity of protected expression. | Dismissed — no substantial similarity of protectable elements; claim fails. |
| Contributory infringement vs Pinkenson and GPFO | Tanksley: hosting Philly Pitch and providing a forum enabled Daniels to obtain Cream and thus materially contributed to infringement. | Defs: no plausible direct infringement alleged; no knowledge or material contribution; mere provision of venue insufficient. | Dismissed — fails all elements (no direct infringement plausibly alleged; no knowledge; no material contribution). |
| Negligence vs Pinkenson and GPFO | Tanksley: GPFO negligently failed to warn or secure guarantees protecting pitched works from misuse. | Defs: claim is preempted by the Copyright Act and, alternatively, no duty or proximate causation pled. | Dismissed — preempted by Copyright Act and, in any event, no plausible duty or breach alleged. |
| Intentional and negligent misrepresentation vs Lee Daniels | Tanksley: Daniels represented interest in developing Cream, inducing reliance and damages. | Daniels: statements were at most future intent/expressions of interest (not past/present fact); no duty; preemption argued. | Dismissed — no actionable misrepresentation of past/present fact; heightened Rule 9(b) not satisfied; claim fails. |
| Contributory infringement vs Leah Daniels-Butler | Tanksley: Leah assisted Lee Daniels in producing Empire and thus aided infringement. | Leah: claim depends on plausible direct infringement by Fox, which is not pled. | Dismissed — derivative contributory claim fails because direct infringement not plausibly alleged. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; conclusory allegations insufficient)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Dam Things from Denmark v. Russ Berrie & Co., Inc., 290 F.3d 548 (3d Cir. 2002) (access and substantial similarity as circumstantial proof of copying)
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (compare works' total concept and overall feel; courts may decide substantial similarity on 12(b)(6) when works are before the court)
- Leonard v. Stemtech Int’l Inc., 834 F.3d 376 (3d Cir. 2016) (elements for contributory copyright infringement)
- Kay-Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005) (distinguishing idea from expression; protectability analysis)
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (contributory and secondary liability principles in copyright law)
- Jackson v. Booker, 465 Fed.Appx. 163 (3d Cir. 2012) (lay-observer test and importance of dialogue/specific expression in similarity analysis)