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IP Law Daily, COPYRIGHT—E.D. Mich.: Memoir author dealt a losing hand in infringement claim against ‘Empire’ producers, (Aug 17, 2022)

Law Firms Mentioned:Jenner & Block LLP
Organizations Mentioned:Fox Broadcasting Co., LLC | Jenner & Block, LLP | Twentieth Century Fox Film Corp.

By Matthew Hersh, J.D.

The author of the memoir, a redemption story entitled ‘The Hidden Hand,” alleged only the taking of facts and not expression from her work.

The author of a memoir about “her life of crime, imprisonment, and her attempt at redempti ...

By Matthew Hersh, J.D.

The author of the memoir, a redemption story entitled ‘The Hidden Hand,” alleged only the taking of facts and not expression from her work.

The author of a memoir about “her life of crime, imprisonment, and her attempt at redemption” could not sue the creators of a hit TV show for copyright infringement merely because the show featured a character allegedly based on her own self-portrayal, the federal district court in Detroit has held. The court’s decision reflected a sharp turnaround from the position it took six years ago when it declined to dismiss the same dispute—a turnaround that the court attributed to the development of new caselaw in the interim (Eggleston v. Twentieth Century Fox Film Corp., August 16, 2022, Berg, T.).

The lawsuit involves the hit musical drama television show Empire, a series centered on a fictional hip hop music and entertainment company and the drama between members of the family that controls it. The show, which ran from 2015-2020, features a character named Cookie Lyon, the ex-wife of the company’s founder, who served 17 years in jail on a drug charge and who vies for control of the company after her release.

The widely-viewed show caught the attention of Sophia Eggleston, the author of a mid-2000s memoir entitled “The Hidden Hand” that detailed “her life of crime, imprisonment, and her attempt at redemption.” In that work she recounted her life growing up in Detroit, running a drug operation and gang, and eventually finding redemption and purpose through her relationship with God. Once the book was published, she shared it with several movie producers and directors in an eventually unsuccessful effort to pitch it as the basis for a movie or TV show.

The author sued the producers of Empire for copyright infringement, alleging that the Cookie Lyon character was based on her own self-portrayal from her autobiography. The producers conceded (at least for the purpose of initial motions) that they had access to the work. They nonetheless moved to dismiss the lawsuit for failure to state a claim. That led to two different—and perhaps for some observers, difficult to reconcile—opinions, six years apart.

2016 opinion. In this decision, the court found that the author had adequately stated a claim for infringement. The court began by noting that it read Sixth Circuit precedent to require “greater particularity in pleading” in copyright infringement actions, in light of the fact that copyright infringement “lends itself readily to abusive litigation.” Nonetheless, the court held, the author satisfied that pleading standard. The question here, the court noted, was whether the author had alleged similarities between the two characters—her real one and Empire’s on-screen one—that were more than just unprotectable “scenes a faire.”

The court held that she had. To be sure, the court noted, the mere fact that “the boss-type character” of story sold drugs, was a gang leader, owned firearms, or experienced the murder of a friend was no unusual. On the other, the court noted, the author’s memoir “features a woman in the dominant role as drug dealer, gang leader, and perpetrator of violence’—“not the stock and trade of the average drug gangster potboiler.” Other “unusual commonalities” noted by the court were that both characters in question have had two close family members murdered, have lost their lovers while serving time in jail, have shielded others by stepping between them and a loaded gun, and “have a gay family member.” (This last observation may raise eyebrows.) “Taken together,” the court found, “these elements are arguably original and substantially similar.”

Present opinion. But the court reached a very different decision when the same case came before it again. It was not immediately clear from the opinion why this happened. The author prevailed against the producers’ motion to dismiss in 2016 and was granted the right to discovery. Instead, she voluntarily dismissed her claim and later refiled it as a new action. (A look at the original docket suggests that a strong dispute opened between the author and her original counsel. Two months after the parties stipulated to the dismissal of the original action, the author filed a handwritten motion—ultimately unsuccessful—with the court asking to be reopened on the ground that she had not given her lawyer permission to dismiss the case.).

In any event, the result was different this time around, as the trial court granted what was effectively the same motion to dismiss that it had denied in 2016. Notably, the trial court acknowledged that it had been wrong when it held, in 2016, that copyright actions were held to a higher standard of particularity than other claims. Nonetheless, even under the traditional standard, the court noted, the complaint still failed. The reason the complaint failed, the court held, was that even though aspects of the underlying story may well have been original in nature—that is, not scenes a faire—they were still based on factual events in the author’s life. Because historical factual events cannot be protected, the court noted, these alleged similarities were not sufficient to alleged copyright infringement.

Commentary. The court cited two cases that had been decided since 2016—Vallejo v. Narcos Prods. LLC, 833 F. App'x 250 (11th Cir. 2020) and Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020)— by way of explanation for its change of heart. In each case, the court noted, the circuit court had held that the use of factual information of someone’s life could not constitute copyright infringement. (Some readers may find this reference to intervening law curious, as it has long been an established feature of law that historical facts may not be protected by copyright. E.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (1980) (author of historical work based on Hindenberg disaster could not prevent those facts from being used in a later movie.).

The Case is No. 2:21-cv-11171-TGB-EAS.

Attorneys: Henri O. Harmon, Office of the Attorney General, for Sophia Eggleston. Andrew J. Thomas (Jenner & Block LLP) for Twentieth Century Fox Film Corp., Fox Broadcasting Co., LLC.

Companies: Twentieth Century Fox Film Corp.; Fox Broadcasting Co., LLC

Cases: Copyright MichiganNews