The Ninth Circuit Holds That a Copyright Plaintiff Must Be Given Leave to Amend to Allege Similarities Between Works and a Plausible Chain of Events Linking Defendants

The Ninth Circuit held that the plaintiff should have been given leave to amend to state with more specificity the similarities between the two works, and to plead facts that could describe a plausible chain of events linking the King Solomon treatment to defendants.
David A. Sergenian

David A. Sergenian

Co-founder and partner of Sergenian Ashby LLP
Formerly an attorney with Quinn Emanuel Urquhart & Sullivan LLP; Glaser Weil Fink Howard Avchen & Shapiro LLP; and Gradstein, Luskin & Van Dalsem PC
J.D. from the University of Virginia School of Law

In Astor-White v. Strong, 2018 WL 3639497 (9th Cir. Aug. 1, 2018), the plaintiff prepared a treatment for a television series title King Solomon. He alleged that his treatment, which he submitted to his friend who was a successful actor and the friend’s manager, who immediately passed on the project. The plaintiff alleged numerous similarities between King Solomonand the Fox television series Empire, including (i) a black record mogul; (ii) wife and three children; (iii) one son who is a business college graduate who may possibly take over the family business; (iv) another son who is a hip hop recording artist; (v) a third some with “feminine qualities/Gay”; (vi) a family member recently released from prison; (vii) friction between family members relating to taking over the family business; (viii) a rival record company run by “the Mob/Italian”; (ix) a record company that was started with  one “female/band recording Artist”; (x) a family member who had a child without being married, among others. 

The plaintiff, who represented himself, sued Danny Strong, Lee Daniels, Imagine Entertainment, and Twenty-First Century, Fox, Inc. for copyright infringement in the Central District of California. The district court dismissed the complaint without leave to amend.

The Ninth Circuit held that the plaintiff should have been given leave to amend to state with more specificity the similarities between the two works, and to plead facts that could describe a plausible chain of events linking the King Solomon treatment to defendants. 2018 WL 3639497 at *1.

A concurring judge observed that “dismissal of a complaint for lack of substantial similarity before any discovery is virtually unheard of.”  The concurring judge further observed that “[n]ot many laypersons, much less judges,” are sufficiently trained in the process of television development to determine whether there are substantial similarities between a treatment and television series.

The concurring judge also noted “the revolutionary nature” of the plaintiff’s “treatment at the time it was written.” The concurring judge explained that although in 2015, television series featuring complex, black lead characters are increasingly common, this was not the case in 2007. Therefore, the district court’s dismissal of the complaint on the grounds that the similarities between King Solomon andEmpirewere generic was inappropriate before factual and expert discovery had taken place, noting that the Ninth Circuit had previously held that substantial similarity is uniquely suited for determination by the trier of fact.