United States: Copyright Plaintiffs Keep Trying To Topple Empire. Can Proto-Cookie Succeed Where Others Failed?

Last Updated: September 19 2016
Article by Nicole Kinsley

Just in time for the Season 3 premiere, let's take a look back at Empire's year in IP litigation.

Like the fictional Lyon family, which is constantly beset by threats from Feds, old criminal connections, and music business competitors, their show Empire finds itself a regular target for infringement claims. As with any successful show (or family), many people want to claim credit and their own slice of a quite lucrative pie. The folks behind Empire have successfully fended off a number of claims to date in California, but a recent decision in Michigan broke their winning streak, leaving one copyright claim as unresolved as an end-of-season cliffhanger. With more cases pending in New York, Pennsylvania and Virginia, we may soon be able to publish a survey of how each circuit handles copyright motions to dismiss, entirely through the lens of Empire cases.

The first season of the show, a hip hop soap opera of very consciously Shakespearean proportions, styles itself as a modern day King Lear mixed with a healthy dose of over-the-top stereotypes. Lucious Lyon, a music mogul with a criminal past (and present!), tries to decide which of his three sons – bipolar businessman Andre, gay R&B singer Jamal, or impetuous young rapper Hakeem – should inherit his Empire (with a capital "E," since that's what he named his company). Unlike Lear's queen, Lucious' ex-wife Cookie is still very much alive, and recently released from prison. The redoubtable Cookie Lyon, whose own drug earnings financed Empire's founding, is out to reclaim her half the company.

The dazzling drama has hooked viewers. But some thought they recognized source material from someone besides the Bard – namely, themselves.

A California Winning Streak

This year started out with two big wins for the hit Fox show, as the same Central District of California federal judge twice found in its favor. First, in Fox v. Empire Distribution, the judge declared that the show did not infringe the trademark rights of Empire Distribution, a real life music company. Then, in Astor-White v. Strong, the same judge dismissed a copyright infringement claim, explaining that Empire was not at all similar to an earlier script treatment called King Solomon, beyond the high-level, unprotectable idea of a black man rising to power in the music industry and living a lavish lifestyle. The judge also wrote that he was "disappointed that Plaintiff's counsel would so blithely make" the "offensive" claim that a female character in the Plaintiff's script was "substantially similar" to Lucius Lyon's gay son in Empire, because both characters were "associated with the feminine gender."

In July, a different judge from the same California district continued Empire's winning streak in Newt v. Fox. The Court dismissed a case brought by Ron Newt, who describes himself as a "gangsta pimp." Newt claimed that Empire was ripped off from his autobiographical book, screenplay and documentary, which primarily focused on his early life in crime, but also included descriptions of his management of his sons' musical careers. The judge painstakingly evaluated the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events of all four works, and found that none were "substantially similar." All Newt had to offer were random similarities that arose in entirely different contexts, a jumble of unprotectable ideas and standard elements that are expected in any story about crime or the music industry. The unconvincing "similarities" Newt alleged included:

  • Jail time for the main female character (Cookie Lyon did seventeen years, while Newt's "China Doll" was quickly bailed out);
  • Musician sons who wear sunglasses and gold chains (two of superstar Lucious' adult sons have successful solo careers, while Newt's pre-teen and teenage sons formed a singing and dancing group The Newtrons. And does it take a federal judge to explain that a musician wearing gold chains and sunglasses is not original?);
  • The protagonist is broken out of jail by his sons (which the judge correctly noted didn't actually happen in Empire); and
  • What the plaintiff referred to as a "lavish 'pimp' aesthetic" (Empire's plot does not in fact involve actual pimps).

The judge was unimpressed by these arguments, which he promptly booted out of court.

Michigan Breaks the Streak

The most recent – and perhaps most surprising – Empire decision comes from the Eastern District of Michigan, in Eggleston v. Daniels. Fox and its fellow defendants once again sought to dismiss a claim of copyright infringement, but apparently this one will be harder to shake. This suit was brought by Sophia Eggleston, who claims that Cookie Lyon is based on her, as described in her memoir. The decision on the motion to dismiss begins by recounting Eggleston's life story, which involves the music industry only to the extent that she has apparently met some famous musicians. One who has watched both seasons of Empire (like me, because I am a meticulous legal researcher) might be struck by how little Eggleston had in common in with Cookie, who has never shot and killed anyone and certainly hasn't found redemption through a Christian radio show. Eggleston nevertheless claims that the "striking" similarities between her and Cookie include that they both:

  • Wear expensive clothes, are known for vicious insults, profanity and a propensity to slap people (a fairly standard, stock type of character);
  • Have family members who have been murdered, and have put themselves between a loved one and a gun (also fairly commonplace elements in a story involving criminal enterprises);
  • Led gangs (which, unless I blacked out during an episode, Cookie did not);
  • Have a gay family member (which may be true of every person on the planet).

The Court noted that a copyright plaintiff has a relatively high burden (because "copyright infringement lends itself readily to abusive litigation"), and recognized that many of these similarities might be standard, unprotectable clichés, but at the same time noted that the preference in the Sixth Circuit is not to resolve the question of substantial similarity at the motion to dismiss or summary judgment stage. The Court also gave the nod to at least some potential for similarity by mentioning that in both stories, the "gang leaders" are women, which "is not the stock and trade of the average drug gangster potboiler." The Court ultimately found that Eggleston's complaint pled infringement "with adequate specificity to give Defendants notice of the claim against them," so the litigation will go forward. It will be interesting to see how (and how far) this case gets once the Court gets down into the nitty gritty of each character as actually portrayed.

Pennsylvania, New York and Virginia to Come

We will soon get to see other courts address similar cases. Motions to dismiss are due this month in pending Empire cases in E.D. Pennsylvania (Tanksley v. Daniels) and E.D. New York ( Castro v. Cusack).

Motions have already been filed in Levi v. Fox in the Eastern District of Virginia, but notably not by all defendants (Fox answered that complaint rather than seeking to dismiss it). That pro se plaintiff alleges that Empire ripped off his novel, which he attempted to publish while in prison. He says he can prove this because he "has secretly embedded a biblical story" in his novel "so if anyone copied his work, he could sufficiently demonstrate that the infringed material derived from his work."

While other viewers are on the edge of their seats during the September 21 season premiere, waiting to learn the fate of two characters last seen in a near-literal cliffhanger, I'll also be waiting with bated breath to learn if the Virginia judge is persuaded that, "[b]ased on the fact the creators of Empire named Lucious' club, Leviticus, it is obvious they solved the hidden biblical story."

If the drama in court continues to match the drama on screen, we may have an update for you by the season finale.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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