Hord v. Jackson

281 F.Supp.3d 417

R. Byron HORD and Curtis Scoon, Plaintiffs,

v.Curtis JACKSON, et al., Defendants.

16 Civ. 7494 (DAB)

United States District Court, S.D. New York.

Signed December 7, 2017

Alexis Padilla, The Law Office of Alexis G. Padilla, Norman Keith White, Jr., Law Office of Norman K. White, Kenneth Jamal Montgomery, Brooklyn, NY, for Plaintiffs.

Jonathan Jay Faust, Katten Muchin Rosenman, LLP, New York, NY, David Halberstadter, Joanna M. Hill, Pro Hac Vice, Katten Muchin Rosenman LLP, Los Angeles, CA, for Defendants.

MEMORANDUM & ORDER

DEBORAH A. BATTS, United States District Judge.

This Action involves a copyright dispute among two Plaintiff screenwriters, Curtis Scoon and R. Byron Hord, and Defendants Curtis "50 Cent" Jackson, G–Unit Films, Starz Entertainment, CBS, and several John Doe and John Doe entities.

In their Complaint, Plaintiffs allege that Defendants infringed on their copyrighted teleplay script Dangerous by gaining access to the script and subsequently writing and releasing a television series of their own, Power.

Plaintiffs' "original" work, Dangerous, tells the story of "Heavy," a 1980s Queens drug dealer who seeks to reestablish himself as a drug kingpin after a long stint in prison.

Defendants' work, the Starz television series Power, tells the present-day story of "Ghost," a successful drug dealer who has never been to prison and struggles to leave the drug business behind.

Before the Court is Defendants' Motion for Judgment on the Pleadings pursuant to Rule 12(c). In essence, Defendants assert that their work Power bears no substantial similarity to Plaintiffs' original work Dangerous. The Court agrees, and for the reasons stated below, Defendant's Motion is GRANTED.

I. Background

A. Factual and Procedural History

According to their Complaint, Plaintiffs state that in late 2009, they completed writing a script for the pilot episode of Dangerous. Plaintiffs assert the work was copyrighted and registered on February 20, 2009. (Id. ¶ 14).¹

Plaintiffs claim they delivered a copy of the script to non-parties Karen Peterkin and James Dubose, two film and television executives. (Id. ¶ 17). Plaintiffs then allege, "[u]pon information and belief," that on March 14, 2011, Dubose met with Curtis Jackson and pitched Dangerous to him to see if he would be interested in bringing the work to television. Plaintiffs claim a copy of the script was sent to Jackson and "bore notice of Plaintiffs' copyright ownership in the material on the front page of the script." (Id. ¶¶ 18–19).

Without contacting Plaintiffs, Defendants allegedly began developing, producing, and filming their own television show derived from Plaintiffs' work. Plaintiffs assert that Defendants released the television show Power on June 7, 2014 on the Starz network. (Id. ¶¶ 20–22). Throughout their Complaint, Plaintiffs make various lists of purported similarities between Dangerous and Power. (See, e.g., id. ¶ 16, ¶ 23).

Plaintiffs filed suit in the Southern District of New York on September 26, 2016 seeking (1) a preliminary and permanent injunction enjoining and restraining Defendants from further infringement or broadcast of Plaintiffs' work; (2) actual damages and profits for copyright infringement pursuant to 17 U.S.C. § 504(b) ; (3) statutory damages for copyright infringement pursuant to 17 U.S.C. § 504(c) ; (4) attorneys fees and costs pursuant to 17 U.S.C. § 505 ; (5) to establish that Defendants held Plaintiffs' "illegally received money and profits" in a constructive trust for Plaintiffs;² (6) an accounting of Defendants' profits "obtained from their marketing, distribution, and national television broadcasting" of Power. (Id. ¶¶ 25–57).

Defendants filed Answers to the Complaint in May 2017. Defendants then moved for Judgment on the Pleadings on July 13, 2017 to dismiss the Complaint. ("Defs.' Mot."). Plaintiffs opposed on August 2, 2017. ("Pls.' Opp.").³

B. Summary of Dangerous ⁴

Dangerous takes place in Queens, New York in the 1980s. "Heavy" Williams is a drug dealer who is just released from prison. At the beginning of the script, he returns home after a long prison term, determined to regain his influence in the Queens drug trade. Upon arriving home, Heavy learns from his mother, Althea, that his gang has lost nearly all its power and that a rival street gang has come out on top after executing many of Heavy's lieutenants. Althea urges him to do what he can to "get back on top."

Heavy is quick to criticize his main advisor "Righteous" who was in charge of his gang in his absence, and dismissive of his girlfriend Princess. He informs his crew that he connected with a Colombian drug kingpin while in prison, who will be able to supply his gang with drugs going forward.

Righteous introduces Heavy to his cousin Garvin, a nervous aspiring record producer. After hearing Garvin's pitch for his hip-hop record label, Heavy becomes interested in investing in the label after Righteous explains how it would be a good front to launder their drug money, especially because the producers are "clean" and one of them is white.

Later, a rival gang member, "Boogie," orders a hit on Althea and Heavy's house. Heavy is not home, but his sister and little niece are. Someone throws a Molotov cocktail through the window and Heavy's young niece is severely burned. When Heavy arrives at the hospital, he learns that Boogie is responsible, and Althea urges Heavy to retaliate. Heavy and Righteous eventually track down Boogie at a local strip club. After Righteous beats Boogie up, Heavy shoots Boogie and douses him with gasoline, burning him to death. The script ends when Heavy is approached by an undercover detective who intimates that Heavy is responsible for the murder. Heavy denies any involvement and when prodded if he is back in the drug game, he lies and claims he is getting into the music business.

C. Summary of Power ⁵

Set in present-day Manhattan, Power tells the story of James "Ghost" St. Patrick, a highly successful drug kingpin and nightclub owner. Ghost expresses a desire early in the series to leave the drug business behind, hoping his success in the nightclub business will allow him to do so. Ghost dresses well and appears calm and collected to outsiders. Nevertheless, in the pilot episode, he murders a low-level drug dealer who stole a day's worth of drug money in the basement of his nightclub.

Ghost is married to Tasha and has three children with her. The family lives in an expensive apartment in Manhattan and leads a lavish life. Tasha urges Ghost not to leave behind the drug trade; Ghost insists that he wants to go "legit" and continue in the nightclub business. Tasha later becomes enraged when she learns that Ghost is putting a lot of his drug money into getting the nightclub off the ground. Ghost's top lieutenant, Tommy, a white man of Irish descent, agrees with Tasha and wants Ghost to continue in the drug business as well.

Ghost eventually secures a new distribution deal with a famous Mexican drug supplier, Felipe Lobos. The deal propels Ghost to even more prominence in the New York drug scene, though Ghost must still fight off attacks from rival gangs.

Separately, Ghost runs into a former flame at his nightclub, Angela Valdez. Angela is an Assistant United States Attorney working on prosecuting Felipe Lobos, Ghost's drug supplier. Ghost and Angela become intimate again, creating a love triangle among Ghost, his wife, and Angela.

The season ends with Ghost trying again to go straight. He makes plans to go to Miami with Angela. Tommy kills an undercover FBI agent and learns that she is Angela's mole. After another shoot out at Ghost's nightclub, Ghost decides to continue in the drug trade and commits to moving double the amount of product as he had previously with Lobos.

II. Analysis

A. 12(c) Legal Standard

Rule 12 (c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c).

A court may dismiss a complaint under 12(c) for failure to state a claim upon which relief can be granted. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) ("In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6)....").

For a complaint to survive a motion to dismiss for failure to state a claim, the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As the Supreme Court explained,

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief."

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556–57, 127 S.Ct. 1955 ); see also Johnson v. Rowley, 569 F.3d 40, 43–44 (2d Cir. 2009) (applying Twombly/ Iqbal standards to 12(c) motions). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks and citation omitted). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). The Supreme Court further stated,

In keeping with these principles a court considering a motion to dismiss can choose to begin by

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