Was It Racist for a Judge to Dismiss a Copyright Lawsuit Targeting Fox's 'Empire'?

Empire Taraji P. Henson Terrence Howard Episodic - Publicity - H 2018
Chuck Hodes/FOX

It's not every day that a federal appeals circuit revives a copyright lawsuit over a major television series. That Jon Astor-White achieved this result against 21st Century Fox, Imagine Entertainment, Lee Daniels and Daniel Strong is rather extraordinary. Astor-White alleges Fox's Empire is a ripoff of his own treatment for a television series titled King Solomon, and he's pursuing his case without a lawyer. But frankly, that's not even the most remarkable part of a memorandum opinion issued Wednesday from the 9th Circuit Court of Appeals.

Copyright lawsuits are notoriously tough for plaintiffs. The law only protects expression — not generic ideas, and those suing for copyright infringement usually have to show that works are substantially similar and that the defendants had access to plaintiff's work.

In March 2016, about a half a year after Astor-White filed his lawsuit, U.S. District Court Judge Percy Anderson dismissed the case with prejudice. After reading the complaint, the judge came to the conclusion that it failed to state a viable claim because King Solomon and Empire were not substantially similar in ways protected by the Copyright Act. Astor-White wasn't given the opportunity to further amend his complaint to cure deficiencies.

At the 9th Circuit, one judge thought Astor-White should have gotten the chance to amend his complaint, while another agreed with Anderson that it would have been "futile."

The tie-breaker was 9th Circuit Judge Kim McLane Wardlaw, who not only agreed with one of her two colleagues to give Astor-White another shot, but also offered an interesting take in a concurring opinion.

Wardlaw writes that dismissal before any discovery has occurred doesn't happen often. The judge also says that Anderson focused too heavily on differences, which she calls "inevitable because change is exactly what happens as a treatment is developed into a fully realized work."

Here's the money quote from her opinion (read in full here):

"Moreover, neither the district court nor the dissent acknowledge the revolutionary nature of Astor-White’s treatment at the time it was written. While diversity in television still has a long way to go, a lot has changed on primetime television in the 11 years since Astor-White wrote the treatment for King Solomon. In the decades prior, black families were mostly represented, if at all, on sitcoms. Only 6 years ago, in 2012, did Kerry Washington debut as Olivia Pope in Scandal on the ABC network as the first black female lead in almost 40 years. The rise of TV shows featuring complex, black lead characters is recent, and Astor-White created King Solomon on the revolution’s precipice. Both King Solomon and Empire are about a black record business mogul with complex family dynamics and who competes with a rival record company owned by a white man involved in organized crime. Empire premiered in 2015 and is credited 'as one of the clear and first runaway hits for representation of black people' and 'represent[s] a dynamic, that for the most part, has not been seen.' 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. Discovery and the expertise of persons who understand the landscape of television at the time King Solomon was written would have greatly informed the decision as to substantial similarity."

In sum, Astor-White's work might have seemed like a generic idea, but given the diversity problem, it was revolutionary! (It should be noted that Judge Percy Anderson is African-American.)

In the minority (appellate-speaking), 9th Circuit Judge Jacqueline Nguyen doesn't buy it.

"The overarching ideas of 'a Black Record Business Mogul and his family' and 'the inner-workings of the billion dollar record business, and [its] effects on the family' are common between the two works. In fact, this is the main similarity. This idea is not protectable," the judge writes.

Nguyen urges the application of what's known as the extrinsic test and criticizes the heavier focus on similarity.

"But what additional facts could change the outcome here?" she asks. "The extrinsic test requires us to review the works, filter out unprotectable elements, and then decide as a matter of law whether the remaining similarities are sufficiently substantial to allow Astor-White to proceed with his copyright infringement claim. Yet the majority does not engage with how or why the district court should come to a different conclusion regarding unlawful appropriation the second time around, nor do I think it could."