A prototype by any other name…

An actor is claiming the idea for the TV show Empire was stolen from him by the show’s creator, but the courts have said they do not think so…twice.

Clayton Prince Tanksley said he met producer and director Lee Daniels at the Greater Philadelphia Film Office in 2008 and privately pitched the idea to him. Tanksley says the two met for an hour. After not hearing from Daniels, Tanksley financed by himself a three-episode version of Cream, a pilot of his TV show. In 2015, he saw his idea, now a TV show called Empire, on the Fox channel with Daniels credited as the creator of the show.

In 2016 Tanksley sued Daniels. But his claim against Daniels was thrown out by the United States District Court for The Eastern District Of Pennsylvania in the same year.

Empire follows Philadelphia-born criminal-turned-music-executive Lucious Lyon and his process of choosing a successor among his three sons after being diagnosed with ALS. While in Cream the main character is Winston St. James, founder and owner of a record company in Philadelphia. The show documents St. James’s personal, family and professional problems, and him being diagnosed with herpes.

Tanksley had in his lawsuit claimed that the two works had substantial similarities in terms of plot, characters, theme, mood, and setting. But the court found all of Tanksley’s claims inaccurate.

In terms of plot, the protagonist in Cream has to deal with his father’s attempts to take over his record company, but this is a minor plot line, Judge Joel H. Slomsky wrote in his decision. In Empire, the story revolves around the protagonist choosing among his three sons to take over his media company Empire Entertainment.

Besides this, Tanksley claimed the two main characters in both shows as “African-American males in their early to mid-40s who rise from poverty and lives of crime on the streets of Philadelphia to become the heads of a large record label company.” But the court ruled that these similarities are not copyrightable. The allegation that both characters are African-American men who rise from poverty and lives of crime to become successful is too general to show substantial similarity, the court decided.

The court also said that both Cream and Empire are soap opera dramas which “focus on an African-American male who has overcome a disadvantaged/criminal past to achieve financial success in the music industry only to be exploited by those closest to him.” But this general theme is not copyrightable. The idea of an African-American male who rises up from a disadvantaged or criminal past to achieve success through music is nothing new to storytelling, nor is it a protectable element of Tanskley’s work. It is a compelling theme which has played out both in real life and which has been prominent in many forms of artistic expression. “Hip-hop moguls such as Jay-Z, Dr. Dre, and Sean ‘Diddy’ Combs are living examples of this story”, the court decided.

Finally, Tanksley claimed the moods expressed in both shows are similar because they contain regular musical interludes. But the court ruled that musical interludes are nothing new as televisions shows “dating back to The Partridge Family have used musical numbers to bridge one scene to the next”.

Undeterred by the loss, Tanksley filed an appeal. He claimed the first ruling did not do enough to take into account the role disease plays, and the distinctiveness of characters in both TV shows.

But in October the US Court of Appeals for the Third Circuit upheld the earlier ruling.

It said that although both of the shows’ lead characters are diagnosed with diseases in their pilot episodes, “any facial plausibility fades upon examination.”, US circuit Judge D. Michael Fisher wrote in his decision. In Empire, Lucious’ diagnosis of ALS, which is fatal, creates in him the urgency to choose his successor, which is the main plot of the whole show. In Cream, Winston’s diagnosis of herpes, “which is painful at best,” interferes with his romantic life and introduces the “venereal whodunit” that follows. Random similarities are insufficient to establish substantial similarity. “After all, both Mozart and Metallica composed in E minor,” Fisher said.

As for the distinctiveness of the characters, The shared premise of the shows – “An African-American, male record executive — is unprotectable,” Fisher wrote. “These characters fit squarely within the class of ‘prototypes’ to which copyright protection has never extended.” The ruling notes an observation from a previous case in the Ninth Circuit in 2003 “that only characters with ‘consistent, widely identifiable traits,’ such as Godzilla, James Bond, and Rocky Balboa, have received copyright protection.”

There is a precedent of how ‘stock characters’ or ‘prototypes’ are not protected under the law in terms of a book, film or play. In the 1930 case of Nichols vs Universal Pictures Corp, playwright Anne Nichols sued Universal Pictures for copying the characters in her play in their movie, The Cohens and Kellys.

Nichols wrote Abie’s Irish Rose, a play and film about a young Jewish man who marries an Irish Catholic woman against the wishes of both their fathers. While in Universal Pictures’ movie The Cohens and Kellys, a Jewish woman marries an Irish Catholic man against their families’ wishes.

Judge Learned Hand did not think her characters were distinct enough. He wrote then in his decision: “It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman. The defendant has not taken from her more than their prototypes have contained for many decades.”

It seems the onus is on the judges of future court cases to further determine the limits of a stock character or prototype. If “Young Jewish Man” is not a distinctive type, and even a “Male African-American Record Executive” is not, how much more defined or complex must a character be to receive copyright protection?