587 F.Supp.3d 232
E.D. Pa.2022Background
- Plaintiff Ramone Curtis Walker wrote and copyrighted the novel Blinded by Love (published 2012) and an internal “bible” summarizing characters, settings, and plot.
- Walker alleges Defendants (creators/distributors of the TV series Power) obtained his work and used it as inspiration for Power (premiered 2014).
- Blinded by Love centers on a Philadelphia drug leader who marries a District Attorney; Power follows James “Ghost” St. Patrick, a New York drug kingpin who has an affair with an Assistant U.S. Attorney.
- Defendants moved to dismiss under Rule 12(b)(6); Walker did not dispute copyright ownership.
- The court reviewed the works side-by-side, concluding Walker failed to plead (1) access and (2) substantial similarity of protectible expression.
- Case dismissed with prejudice; court denied leave to amend as futile and declined to convert the motion into summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Access to plaintiff's work | Walker: novel/bible was marketed (trade shows, Amazon) and thus defendants had access | Defs: no factual allegations showing defendants saw the work or any intermediary dealings; mere availability on Amazon insufficient | Court: Walker failed to plead direct, third-party, or "striking" access; access not established |
| Substantial similarity | Walker: characters, relationships, plot, dialogue, and mood are substantially similar | Defs: similarities are generic or scènes à faire; many material differences in characters, events, tone | Court: no substantial similarity of protectible elements; no reasonable jury could find copying |
| Use of the works at motion-to-dismiss | Walker: if court must consider extraneous materials, convert to summary judgment and allow discovery | Defs: copyrighted and allegedly infringing works are integral and may be considered on 12(b)(6) | Court: may consider the works on the motion per Third Circuit precedent; no conversion required |
| Leave to amend / discovery on access | Walker: requests leave to amend and discovery to prove access | Defs: amendment would be futile given lack of substantial similarity | Court: denied leave; dismissal with prejudice because amendment would not cure lack of substantial similarity |
Key Cases Cited
- Zuber v. Boscov’s, 871 F.3d 255 (3d Cir. 2017) (plausibility pleading standard under Rule 12(b)(6))
- Tanksley v. Daniels, 902 F.3d 165 (3d Cir. 2018) (side-by-side comparison; copyrighted works may be considered on 12(b)(6); substantial similarity standard)
- Dam Things from Den. v. Russ Berrie & Co., 290 F.3d 548 (3d Cir. 2002) (lay-observer test for substantial similarity)
- Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002) (elements of a copyright infringement claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (courts need not accept conclusory legal allegations)
- In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) (integral documents may be considered on a motion to dismiss)
- Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138 (9th Cir. 2009) (limited sales do not establish wide dissemination)
- Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (compare overall concept and feel)
- Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004) (scènes à faire doctrine explained)
- Nicassion v. Viacom Int’l, Inc., [citation="776 F. App'x 761"] (3d Cir. 2019) (shared theme alone insufficient for substantial similarity)