“EMPIRE” COPYRIGHT CASE AGAINST FOX REJECTED BY U.S. DISTRICT COURT FOR THIRD TIME AFTER THE 9TH CIRCUIT REVERSED A PREVIOUS DECISION FOR DEFENDANT FOX
Steven T. Lowe
Following up on our August 8, 2018 article entitled “Ninth Circuit Revives Lawsuit Against Fox Regarding ‘Empire’”: On June 14, 2019, U.S. District Judge of the Central District of California, Percy Anderson, again tossed the lawsuit against Fox Television which claimed that plaintiffs’ unproduced “treatment” was the basis of the television show “Empire.” This recent development comes a year after the Ninth Circuit said the plaintiff should be given another chance.
For the third time, and for the same reason, Judge Anderson ruled that plaintiff Jon Astor-White had failed to plausibly claim that “Empire” misappropriated a six-page treatment entitled “King Solomon”: “Despite two additional opportunities to cure those deficiencies [referring to deficiencies in plaintiff’s complaints which Judge Anderson concluded “failed to state a viable claim because King Solomon and Empire were not substantially similar in ways protected by the Copyright Act”], plaintiff and two separate teams of counsel have been unable to do so…As a result, the court concludes that further leave to amend would be futile.” This latest ruling is notable because it follows a decision last August by the Ninth Circuit that revived Astor-White’s case.
In August of 2018, Ninth Circuit Judge Kim Wardlaw, said it was “virtually unheard of” for a federal judge to dismiss a copyright case on the pleadings without any discovery or the advice of experts. Similarly, Judge Wardlaw added, “The district court dismissed this claim on the basis that the storyline in King Solomon and its many similarities with Empire were generic…However, judges have no particular expertise in determining what is and is not generic in cases like these, where the judge could not have seen a similar show at the time it was written.”
After the Ninth Circuit’s ruling, Judge Anderson complied with the appellate court by giving Astor-White two chances to replead his accusations. Both times, the judge wrote “the changes were minimal.” Consequently, Judge Anderson has now again, for the same reasons as the prior two dismissals, tossed the lawsuit based on “lack of substantial similarity in ways protected by the Copyright Act,” and in this author’s opinion, did so in contravention of the current state of copyright law with respect to the test for substantial similarity.
20th Century Fox and the other defendants, including “Empire” creator Lee Daniels, are represented by Daniel M. Petrocelli, Molly M. Lens, Anton Metlitsky and Patrick S. McNally of O’Melveny & Myers LLP.
Astor-White is represented by Lawrence S. Strauss.
The case is Jon Astor-White v. Daniel Strong, et al., case number 2:15-cv-06326, in the U.S. District Court for the Central District of California.
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