The Ninth Circuit took the unusual step of reviewing whether the Central District of California properly denied a motion to amend the complaint in Astor-White v. Strong et al.
The case concerns copyright infringement, brought by Jacob Astor-White, against three people involved in the television show Empire. Astor-White claims that the show is based on the six-page television treatment he created entitled King Solomon.
Astor-White wrote the complaint himself then had counsel draft the first amended complaint, but it was methodically picked apart by the district court judge before dismissing the case. On the first appeal, the 9th Circuit remanded the case, directing the district court to allow further amendment of the complaint. On remand, the district court again held that the proposed second and third amended complaints were insufficient, even though drafted by second and third sets of attorneys. Among other things, additional allegations that a renowned actor had been friends with the plaintiff and worked on Empire were too vague and conclusory to sustain the action. Also, adding three more plot similarities failed to impress the judge.
Copyright infringement consists of two factors: similarity and access. The 9th Circuit relied on the concept of scènes à faire to say that all the common elements between the plots are actually non-copyrightable, common elements. This prompted a higher standard of “strikingly similar” rather than just substantial similarity. It seems that in their judgment, a story that begins with a successful Black man necessarily includes interactions with the mafia, incarceration, and a drug-dealing past. The appellate court found that these puported scènes à faire were not strikingly similar.
Additionally, the treatment was only sent to three people — none of whom were involved in the production of Empire. Astor-White failed to prove that anyone connected with the show had access to his work. It’s a long shot to say the treatment traveled from the three people to whom he gave it to the producers of Empire.
The Ninth Circuit affirmed the district court’s dismissal with prejudice.
Deficiencies of the complaint aside, what gave me pause about this case is that the court seemed to be saying that any story about a successful Black family must include all of that human misery. That strikes me as problematic. It seems to me like an assumption of the norms we see on television, which are known to work to the detriment of anyone trying to create an alternative story depicting People of Color. However, it also seems that the court reached the right decision: failure to sufficiently allege access to an allegedly infringed work is fatal to a copyright claim. And the “kitchen sink” approach to adding more unsupported allegations just ended up with an overflowing kitchen sink; more is not necessarily better.
Mark S. Kaufman
Kaufman & Kahn
ka*****@*********hn.com
10 Grand Central, 155 East 44th Street
19th Floor
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009
