Tanksley v. Daniels

259 F.Supp.3d 271

Clayton Prince TANKSLEY, Plaintiff,

v.Lee DANIELS, et al., Defendants.

CIVIL ACTION NO. 16–0081

United States District Court, E.D. Pennsylvania.

Signed April 28, 2017

Predrag Filipovic, I Fight 4 Justice Law Office of Predrag Filipovic, Mary Elizabeth Bogan, Bogan Law Group, Philadelphia, PA, for Plaintiff.

Andrew J. Thomas, Richard L. Stone, Jenner & Block LLP, Kelly L. Perigoe, Linda M. Burrow, Caldwell Leslie & Proctor LLC, Los Angeles, CA, Michael K. Twersky, Beth L. Weisser, Fox Rothschild, LLP, Charles M. Golden, Rigel Farr, Obermayer Rebmann Maxwell & Hippel, LLP, Philadelphia, PA, for Defendants.

OPINION

Slomsky, District Judge

TABLE OF CONTENTS

I. INTRODUCTION ...277

II. BACKGROUND ...277

III. STANDARD OF REVIEW ...279

IV. ANALYSIS ...280

A. Plaintiff Has Not Plausibly Alleged a Claim of Copyright Infringement Against Fox Defendants ...280

1. Summary of the Two Works...281

2. Substantial Similarity Analysis...286

B. Plaintiff Has Not Plausibly Alleged a Claim of Contributory Copyright Infringement Against Sharon Pinkenson and the Greater Philadelphia Film Office ...294

C. Plaintiff Has Not Plausibly Alleged a Claim of Negligence Against Sharon Pinkenson and the Greater Philadelphia Film Office ...296

1. Plaintiff's Negligence Claim is Preempted by the Copyright Act...297

2. Plaintiff Has Not Plausibly Alleged a Claim of Negligence...299

D. Plaintiff Has Not Plausibly Alleged a Claim of Intentional Misrepresentation Against Lee Daniels ...300

E. Plaintiff Has Not Plausibly Alleged a Claim of Negligent Misrepresentation Against Lee Daniels ...303

F. Plaintiff Has Not Plausibly Alleged a Claim of Contributory Copyright Infringement Against Leah Daniels–Butler ...304

V. CONCLUSION ...305

I. INTRODUCTION

Plaintiff Clayton Prince Tanksley brings this action against numerous Defendants alleging that they infringed on his copyrighted work titled Cream by creating and using copyrighted materials to produce the television series Empire. (Doc. No. 45.) The Defendants in this case can be divided into two identifiable groups. The first one consists of the "Fox Defendants." Included in this group are Lee Daniels, Lee Daniels Entertainment, Leah Daniels–Butler, Danny Strong, Danny Strong Productions, Twenty–First Century Fox, Inc., Fox Entertainment Group, Inc., Twentieth Century Fox Film Corp., Twentieth Century Fox Television, Inc., Twentieth Television, Inc., Twentieth Century Fox International, Twentieth Century Fox International Television, LLC, Twentieth Century Fox Home Entertainment, LLC, Fox Networks Group, Inc., Fox Broadcasting Company, Fox Television Stations, Inc., Fox Digital Media, and Fox International Channels. The second group has two Defendants: Sharon Pinkenson and the Greater Philadelphia Film Office ("GPFO").

In Count I of the Second Amended Complaint ("SAC"), Plaintiff alleges that Fox Defendants directly infringed on his copyrighted work Cream by producing the television series Empire. (Doc. No. 45 at ¶¶ 42–56.) In Count II, Plaintiff alleges a contributory copyright infringement claim against Sharon Pinkenson and GPFO, and in Count III, a negligence claim against the same Defendants. (Id. at ¶¶ 57–70.) In Counts IV and V respectively, Plaintiff alleges intentional and negligent misrepresentation claims against Lee Daniels. (Id. at ¶¶ 71–79.) Finally, in Count VI, Plaintiff alleges that Leah Daniels–Butler committed contributory copyright infringement. (Id. at ¶¶ 79–86.) Defendants have filed two Motions to Dismiss the SAC in its entirety. (Doc. Nos. 53–54.) The Motions are now ripe for disposition.¹

II. BACKGROUND

In 2005, Plaintiff Clayton Prince Tanksley wrote, filmed, and produced a three episode television series titled Cream about an African American man "who has overcome a disadvantaged ... past to achieve financial success in the music industry, only to be exploited by those closest to him." (Doc. No. 45 at ¶ 41(A).) On September 23, 2005, Plaintiff obtained a registration of Cream from the United States Copyright Office. (Registration Number Pau3–002–354.) He then set about marketing his copyrighted work with the hope of making a hit television show or movie. Through these efforts, Tanksley learned about an event called Philly Pitch, where "writers and potential producers [were presented with] an opportunity to pitch their film concepts to a panel of entertainment industry professionals who act as 'judges.' " (Doc. No. 45 at ¶ 31.) The Greater Philadelphia Film Office ("GPFO") and its Executive Director, Sharon Pinkenson, organized this event. (Id. at ¶ 32.) Lee Daniels participated as one of the judges. (Id. at ¶ 31.)

On April 5, 2008, Tanksley attended Philly Pitch. (Id. ) He presented one copyrighted work, titled Kung Fu Sissy , to the panel of judges.² (See Doc. No. 53, Ex. B.) After each presenter pitched an idea to the panel, the participants broke for informal discussions and networking. At that time, Plaintiff alleges that he and Daniels privately discussed Cream. (Doc. No. 45 at ¶¶ 35–36.) Tanksley gave Daniels several copies of a DVD containing his copyrighted work, along with a written script of the show. (Id. at ¶ 36.) His goal was to work with Daniels to produce Cream as a hit television show. (Id. )

Nearly seven years later, on January 7, 2015, Fox aired a pilot episode of its new television series titled Empire , which features the struggles of Lucious Lyon, a rapper and former drug dealer who founded one of the world's leading media companies, Empire Entertainment, with his ex-wife Cookie Lyon. (Id. at ¶ 37.) This soap opera chronicles Lucious and Cookies' fight for control over Empire Entertainment, vicariously waged through a succession battle among their three adult sons. (Doc. No. 53 at 3.)

Lee Daniels and Danny Strong are the creators of Empire. (Id. at ¶ 37.) Plaintiff alleges that Daniels and Strong surreptitiously took his copyrighted work and were "knowingly and willfully involved in the unauthorized copying of 'Cream' " in connection with the creation of Empire. (Id. at ¶ 46.) Plaintiff avers that after the airing of Empire , he was unable to successfully market Cream to any television network "due to its striking similarities to 'Empire.' " (Id. at ¶ 41.)

On January 8, 2016, Plaintiff initiated this action. (Doc. No. 1.) He filed an Amended Complaint on January 29, 2016. (Doc. No. 3.) On June 17, 2016, Defendants filed two Motions to Dismiss the Amended Complaint. (Doc. Nos. 21, 25). The Court held a hearing on Defendants' Motions to Dismiss on June 2, 2016. (Doc. Nos. 41–42.) At the hearing, this Court afforded Plaintiff another opportunity to amend the Amended Complaint. On August 1, 2016, Plaintiff filed the Second Amended Complaint ("SAC"). (Doc. No. 45.) Upon the filing of the SAC, the Court denied Defendants' pending Motions to Dismiss without prejudice as moot. (Doc. No. 46.)

On September 30, 2016, Defendants filed another two Motions to Dismiss the SAC. (Doc. Nos. 53–54.) Plaintiff filed Responses in Opposition on October 30, 2016. (Doc. Nos. 57–60.) On November 14, 2016, Defendants filed Replies. (Doc. Nos. 62–63.) This Court held a hearing on the Motions to Dismiss the SAC. (See Doc. No. 69.) At the hearing, the Court granted the parties leave to file supplemental briefs in support of their positions. (Id. ) On March 27, 2017, Plaintiff and Defendants filed supplemental briefs on the Motions to Dismiss (Doc. Nos. 80–84), which is now ripe for a decision.

III. STANDARD OF REVIEW

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). After Iqbal it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663, 129 S.Ct. 1937 ; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010) ). "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." Id. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679, 129 S.Ct. 1937 ). "This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234–35 (3d Cir. 2008) ). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,...