In copyright infringement action against Showtime and producers of television series Penny Dreadful, Ninth Circuit affirms dismissal, holding that plaintiff failed to allege striking similarity between series' characters and those she created in online role-playing community.
As a member of an online role-playing forum titled Murders & Roses: Victorian London Crimes & Scandals, which allows its members to write posts and develop stories based on the themes of crime and scandal in the Victorian era, plaintiff Anna Biani created three characters: Charlotte Benoit (a courteous, feminine cross-dressing witch doctor specializing in magical plants), Frederick FitzClarence (a man with a "habit of public displays of sexuality," seizures and dark thoughts) and Landon Lloyd (a clairvoyant, nomadic explorer who wears pinstripes). In 2013, Showtime aired the television show Penny Dreadful, a Gothic fiction series set in Victorian London with themes of sexuality and crime, featuring characters Vanessa Ives (a witch with supernatural abilities manifesting as seizures and visions) and Sir Malcolm Murray (a British explorer who has traveled throughout Africa).
Biani sued Showtime and the makers of Penny Dreadful for copyright infringement, alleging that the show incorporated various aspects of her characters into the show's characters Vanessa and Malcolm. The district court granted Showtime's motion to dismiss, concluding that Biani failed to plead that defendants had access to her online posts or that striking similarities existed between the works such that access could be presumed. (Read our summary of the district court's decision here.) Although Biani was given leave to amend, she chose not to do so; the district court accordingly dismissed her complaint with prejudice. On appeal, Biani did not challenge the district court's determination that she failed to plausibly allege evidence of access, instead arguing that the similarities between the works are so striking as to preclude independent creation.
The Ninth Circuit first turned to the issue of whether the district court correctly filtered out unprotectable elements in deciding whether plaintiff had alleged factual copying. The Ninth Circuit held this was in error, as factual copying can be established even by copying unprotectable elements. But the Court of Appeals ruled that this error was harmless because, even considering unprotectable elements of the two works, Biani's allegations were insufficient to plausibly infer copying.
Biani alleged that the show's main female character Vanessa shared a similar appearance, personality and special abilities with her main female character Charlotte, including their "rejection of Victorian norms for women, their transgressive sexuality, their power to seduce and control men, their fraught relationships with religion and the Church," their "common vocation as witches," and their "depiction using the likeness of Eva Green." Biani further alleged that Vanessa, like Frederick, is prone to seizures, both characters associate their "seizures with possession by evil spirits," and Malcolm and Landon share the "common plot arc of an explorer searching for a missing family member using the powers of clairvoyance."
The court rejected each of these allegedly similar characteristics, determining that they were at a level of generality that did not establish striking similarity. The court instead emphasized the stark differences between the characters, noting, for example, that Charlotte never feels "remorse after her homicides," while Vanessa "never murders anyone in the Show and expresses grief when" another character commits homicide to save Vanessa's life. The court continued that although the parties' selection of Eva Green to play both Charlotte and Vanessa "appears striking," Biani and Showtime could have independently identified Green as an actress to play a witch because she had played a witch previously. The court similarly distinguished the relationships that Charlotte and Vanessa have with their otherworldly assistants; while Charlotte's assistant is a "vicious satanist" who serves "Charlotte as his 'master' and helps Charlotte dispose of corpses," Vanessa captured her assistant, who refers to Count Dracula as his master. The court also distinguished Biani's character Landon (who has clairvoyant powers and travels the world to make "ends meet") from Showtime's character Malcolm (who does not have special powers, does not travel and is wealthy). Finally, the court concluded that these stark differences precluded a finding of unlawful appropriation, as they involved unprotectable elements. The Ninth Circuit therefore affirmed dismissal of Biani's complaint with prejudice.
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