Opinion
16 Civ. 7494 (DAB)
12-07-2017
R. Byron HORD and Curtis Scoon, Plaintiffs, v. Curtis JACKSON, et al., Defendants.
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.
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).
If these dates are correct, the Plaintiffs copyrighted their work before it was completely written.
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; (6) an accounting of Defendants' profits "obtained from their marketing, distribution, and national television broadcasting" of Power. (Id. ¶¶ 25–57).
This cause of action was voluntarily dismissed by stipulation on July 5, 2017.
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.").
The Court acknowledges that Plaintiffs initially filed an untimely and oversize opposition on August 1, 2017. On August 2, 2017, Plaintiffs moved for an extension of time to oppose (after the opposition deadline had passed), and submitted a shortened brief the same day within the 25–page page limit. The Court has only reviewed Plaintiffs' 25–page brief. Plaintiffs' counsel is reminded to follow the federal, local, and individual rules of this Court and that future disregard of such rules may result in discipline.
This summary is taken from the Court's review of Plaintiffs' script, Hill Aff., Ex. B, which is incorporated into the Complaint by reference. See Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F.Supp.2d 625, 629, n.1 (S.D.N.Y. 2008) ("As the Film is referred to in the complaint and is integral to Gottlieb's claims, it is deemed incorporated into the complaint by reference. Hence, I consider it on this motion to dismiss."); see also Int'l Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995) ("[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,’ the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." (quotations omitted)).
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.
This summary is taken from review of the first season of Power, Hill Aff., Ex. C, which is incorporated into the Complaint by reference. See supra note 4.
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 identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 679, 129 S.Ct. 1937.
In considering a Rule 12(b)(6) or 12(c) motion, the Court must accept as true all factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; Blue Tree Hotels Inv. (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). However, this principle is "inapplicable to legal conclusions," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, which, like the complaint's "labels and conclusions," Twombly, 550 U.S. at 555, 127 S.Ct. 1955, are disregarded. Nor should a court "accept [as] true a legal conclusion couched as a factual allegation." Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). In resolving the motion, a district court may consider the facts alleged in the Complaint, documents attached to the Complaint as exhibits, and documents incorporated by reference in the Complaint. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
B. Copyright Claims
There are two key elements a plaintiff must establish to make out a prime facie case of copyright infringement. First, a Plaintiff must show that his work was actually copied (i.e., "access"). Next, a plaintiff must show that "copying amounts to an improper or unlawful appropriation" (i.e., "substantial similarity"). Castle Rock Entm't v. Carol Publ'g Grp., 150 F.3d 132, 137 (2d Cir. 1998) (citing Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 139–40 (2d Cir. 1992) ).
1. Access
Actual copying may be proven "either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony." Laureyssens, 964 F.2d at 140.
On the face of their Complaint, Plaintiffs have not adequately established that Defendants had access to their work. Plaintiffs state that "[i]n or about late 2010, Plaintiffs delivered a copy of the Original work to [non-parties] Karen Peterkin and James Dubose, film and television executives based in Los Angeles, California." (Compl. ¶ 17). They then baldly state, with no factual support, "[u]pon information and belief, on or about March 14, 2011, James Dubose met with Defendant Jackson and pitched the Original Work to Defendant Jackson to determine if Defendant Jackson would help bing [sic ] the Original Work to television." (Id. ¶ 18).
In their Opposition papers, Plaintiffs attempt to introduce documents to help bolster their claims of access. (See Pls.' Opp., Exs. A–C). Consideration of these documents is inappropriate when considering a Motion to Dismiss or Motion for Judgment on the Pleadings. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) ("[O]ur review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference."). Accordingly, this Court has disregarded those documents.
Plaintiffs' naked assertions in their Complaint, that two non-parties allegedly showed the work to Defendants, are insufficient to establish access. The Plaintiffs do not "offer or supply any evidence to establish that the Defendants, or any of them, actually had (a reasonable possibility of) access" to the original work before creating Power. See Dimmie v. Carey, 88 F.Supp.2d 142, 146 (S.D.N.Y. 2000). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions ...." 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 ). Thus, Plaintiffs' claims for copyright infringement fail to establish access.
2. Substantial Similarity
Even if Plaintiffs had somehow established "access" to their copyrighted works, their claims would still fail under the "substantial similarity" prong because their work is not substantially similar to Defendants' work.
a. The "More Discerning Observer" Test and Applicable Law
Copyright "protection extends only to those components of a work that are original to the author." Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001). When a plaintiff's work is wholly original, such as with a painting, courts in the Second Circuit apply the "average observer" test in determining whether substantial similarity exists. Id. at 271–72. When the original work contains unprotected elements and incorporates elements from the public domain, as is often the case with television series, courts apply the "more discerning observer" test. Id. at 272. Dangerous incorporates elements from the public domain: the story line of a drug dealer who engages in violence, launders money and attempts to stave off prosecution is common in the television and film world. One need only look to such shows and movies as The Wire, Empire, Breaking Bad, Narcos, Weeds, Carlito's Way, American Gangster, New Jack City, Scarface, and Paid in Full. (See generally, Defs.' Request for Judicial Notice (describing shows and films with these exact elements)). Plaintiffs even admit that their work contains stock elements in their Complaint when they reference Empire and that show's similarities with Dangerous. (See Compl. ¶ 24). Accordingly, because Dangerous contains many elements from the public domain, the "more discerning observer test" applies.
"In applying [the ‘more discerning observer’] test, a court is not to dissect the works at issue into separate components and compare only the copyrightable elements." Boisson, 273 at 268. Rather, the inquiry is whether the copying of protectable elements "is quantitatively and qualitatively sufficient to support a finding of infringement." Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70 (2d Cir. 1999) (internal quotations omitted). District Courts are directed to "examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace and setting." Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996) (emphasis added).
Any claim of substantial similarity must be based on "more than generalized idea[s] or themes." Walker v. Time Life Films, Inc., 784 F.2d 44, 49 (2d Cir. 1986). Superficial and de minimis overlapping character traits and plots do not constitute substantial similarity. Alexander v. Murdoch, 502 Fed.Appx. 107, 109 (2d Cir. 2012), as amended (Nov. 16, 2012); see also Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 242 (2d Cir. 1983) (copyright law does not prohibit "literal copying of a small and usually insignificant portion of the plaintiff's work") Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980) (scènes-à-faire, elements standard in the treatment of a given topic, are not protectable).
b. Primary Sources
Even though "the question of substantial similarity typically presents an extremely close question of fact," the Second Circuit has repeatedly held that in certain circumstances, "it is entirely appropriate for a district court to resolve that question as a matter of law." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (internal citation omitted). "When a court is called upon to consider whether the works are substantially similar, no discovery or fact-finding is typically necessary, because what is required is only a visual comparison of the works. Thus, ... it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation." Id. at 64 (internal citation omitted); see also id. ("If, in making that evaluation, the district court determines that the two works are not substantially similar as a matter of law, ... the district court can properly conclude that the plaintiff's complaint, together with the works incorporated therein, do not plausibly give rise to an entitlement to relief." (internal citations omitted)); Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F.Supp.2d 625, 632 (S.D.N.Y. 2008) (granting Rule 12(b)(6) motion to dismiss and holding that two works in question, which the court deemed incorporated into the complaint by reference, were not substantially similar); Le Book Publ'g, Inc. v. Black Book Photography, Inc., 418 F.Supp.2d 305 (S.D.N.Y. 2005) (same).
Accordingly, this Court has examined the Dangerous script and viewed Power. See Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986) ("[I]n copyright infringement cases the works themselves supersede and control contrary descriptions of them.").
District Courts are directed to ignore lists provided by Plaintiffs of purported similarities between two works. See Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996) ("Although Williams points to several specific instances of similarity, we agree with the district court that such lists are ‘inherently subjective and unreliable,’ particularly where ‘the list emphasizes random similarities scattered throughout the works.’ ... Such a scattershot approach cannot support a finding of substantial similarity ...."); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986) (discounting such lists); Allen v. Scholastic Inc., 739 F.Supp.2d 642, 663 (S.D.N.Y. 2011) (noting "random similarities scattered throughout the works ... cannot by themselves support a finding of substantial similarity.").
c. Application
A "more discerning observer" would not find that the two works at issue are quantitatively and qualitatively similar after examining "the total concept and feel, theme, characters, plot, sequence, pace and setting" of the works. Williams, 84 F.3d at 588.
The plots of Dangerous and Power contain only generalized similarities. Though both works involve an African–American protagonist who deals drugs and engages in violence, such a story line is extremely common in television and movies. (See generally, Defs.' Request for Judicial Notice (describing such shows as The Wire and Empire which contain a similar plot line)); see also Jones v. CBS, Inc., 733 F.Supp. 748, 753 (S.D.N.Y. 1990) ("It has long been recognized that all fictional plots, when abstracted to a sufficient level of generalization, can be described as similar to other plots.").
The protagonists of both works bear no similarities that could be protectable aside from the fact that they are both African–American drug dealers. Dangerous tells the story of Heavy, a rough gang member who, after just being released from prison, seeks to establish himself and his gang back on top of the Queens drug trade. Power tells the story of Ghost, a successful drug kingpin who seeks to quit the drug trade. We have no indication that Ghost has ever been to prison. Nor do we have any indication in Dangerous that Heavy wants to quit the drug trade and go straight. (Compl. ¶ 1). Although Heavy does seem interested in investing in a "clean" record label, the script makes clear that this interest stems from a desire to launder money, not to break away and go straight, as is the case with Ghost's business interests in his nightclub.
In Power, Ghost is caught in a love triangle between his wife Tasha, who urges him to stay in the drug business, and his lover Angela, a federal prosecutor. The women in Ghost's life appear to represent his internal struggle between drugs and going straight. No such struggle appears in Dangerous. The fact that both Tasha in Power and Princess in Dangerous loosely support their respective husband/boyfriend's endeavors in the drug trade, (Pls.' Opp. at 10), is not such a striking parallel to rise to the level of "substantial similarity."
The mere fact that both protagonists cheat on their girlfriend or wife reflects more of a scène-à-faire than a copyrightable similarity, contrary to Plaintiffs' assertions. (Contra Pls.' Opp. at 12). The use of sex scenes in an adult series is generic, as is the fact that a drug dealer in New York sis supplied by a Latin American supplier. (Id. ). These similarities are not "qualitatively sufficient to support a finding of infringement." Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70 (2d Cir. 1999).
Nor do other characters bear substantial similarity between the two works. Plaintiffs incorrectly state that both works involve an Irish sidekick, when a review of Plaintiffs' own Dangerous script reveals no such Irish character exists (Heavy's sidekick is African–American). (Compl. ¶ 16; ¶ 23). Though both works do involve a mother figure, Heavy's biological mother in Dangerous appears to be involved in the drug trade herself and pressures Heavy to reestablish his dominance, whereas Ghost's mother-in-law in Power has no direct connection to the drug trade and appears to be disapproving of Ghost.
Plaintiffs' attempts to introduce an undated and unverified pitch sheet by exhibit in their briefs, which purportedly contains a reference to an Irish character, is inappropriate on a 12(c) or 12(b)(6) Motion. (Pls.' Opp., Ex. B). The pitch sheet is not incorporated by reference into the Complaint and the Court will disregard it. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) ("[O]ur review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.").
"The bar for substantial similarity in a character is set quite high." Sheldon Abend Revocable Tr. v. Spielberg, 748 F.Supp.2d 200, 208 (S.D.N.Y. 2010). Characters that are "essentially undeveloped stereotypes" are not protectable. Hudson v. Universal Studios, Inc., No. 04 CIV 6997(GEL), 2008 WL 4701488, at *6 (S.D.N.Y. Oct. 23, 2008). Courts in this District have routinely dismissed infringement claims where there were far greater overlap in characters (or plot) than is present here. See, e.g., Allen v. Scholastic Inc., 739 F.Supp.2d 642, 659 (S.D.N.Y. 2011) (finding no substantial similarity between two "famous male wizards, initiated late into wizarding (in pre/early adolescence), who receive formal education in wizarding and are chosen to compete in year-long wizard competitions"); Sheldon, 748 F.Supp.2d at 208 (finding no substantial similarity where "both works [told] the story of a male protagonist, confined to his home, who spies on neighbors to stave off boredom, ... discovers that one of his neighbors is a murderer, ... is himself discovered by the suspected murderer, is attacked by the murderer, and is ultimately vindicated."); Hogan v. DC Comics, 48 F.Supp.2d 298, 312 (S.D.N.Y. 1999) (even though protagonists in both works shared "the same name," were both "half-vampire," and were "indoctrinated into the forces of evil by killing," these were "unoriginal, and therefore, unprotectable elements"); Arden v. Columbia Pictures Indus., Inc., 908 F.Supp. 1248, 1261 (S.D.N.Y. 1995) ("Although [both characters] bear superficial similarities, such as the fact that both are bachelors in their thirties, both pursue love interests and are somewhat chauvinistic and self-centered, any such similarities are concepts or ideas that do not reach the level of copyrightable expression.").
Plaintiffs' reliance on Lone Wolf McQuade Assocs., v. CBS Inc., 961 F.Supp. 587 (S.D.N.Y. 1997) is inapplicable here. (Pls.' Opp. at 21–22). The Lone Wolf court found that "carefully selected character traits [ ] constitute[d] a creative act protected by copyright," including the protagonists' "approaches to law enforcement, style, fighting technique, characteristic behavior, and methods of operation as modern-day Texas Rangers, their portrayal by Chuck Norris, their attitudes toward authority and rules, and their style of attire and choice of vehicle." Lone Wolf McQuade Assocs., v. CBS Inc., 961 F.Supp. 587, 594 (S.D.N.Y. 1997). Such "carefully selected" similarities are not present here.
Moreover, the setting and pace of each work is different. Dangerous is set in Queens in the 1980s; Power, on the other hand, is set in current-day Manhattan and features numerous scenes inside of Ghost's own posh apartment or flashy nightclub. Plaintiffs attempt to characterize both works as a "fast-paced," "intense," one-hour crime drama that follows a "drug-dealing mogul." Yet even assuming such a similarity in "pace" exists, "pace, without more, does not create an issue of overall substantial similarity between the works." Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996) ; see also Lewinson v. Henry Holt & Co., LLC, 659 F.Supp.2d 547, 575 (S.D.N.Y. 2009) ("While the repetitive pace of the two works is arguably similar, a repetitive format is to be expected in works aimed at children."); Robinson v. Viacom Int'l, Inc., No. 93 CIV. 2539 (RPP), 1995 WL 417076, at *11 (S.D.N.Y. July 13, 1995) ("The ‘up-tempo’ pace of the two works is common to virtually all sitcoms, and is not a protectible element of Plaintiffs' work."). Considering the works holistically, Power and Dangerous do not overlap significantly enough in setting and pace to rise to the level of substantial similarity.
Plaintiffs' attempts to draw parallels between the two works by arguing that "both works exhibit upscale fashion of the day," are unavailing. (Contra Pls.' Opp. at 15). The fact that characters in both works wear designer clothing is nothing revolutionary. Likewise, Plaintiffs' argument that the two works have similar dialogue by pointing to the two phrases "You watch too much Perry Mason detective" and "You gotta stop watching that Dr. Phil," are nonsensical. (Contra id. at 16).
Given all of the above, the "total concept and feel" of Dangerous and Power are not substantially similar. Williams, 84 F.3d at 588. The "total concept and feel" of a work is comprised of the way an author "selected, coordinated and arranged the elements of his or her work." Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In the Second Circuit, courts take into account overall "mood, details or characterization." Reyher v. Children's Television Workshop, 533 F.2d 87, 92 (2d Cir. 1976). Dangerous and Power do not share an overlapping sequence of events, nor do they both contain characters with enough similarity beyond stock elements of drug dealing and the drug trade. The details of the plot progression of the two works demonstrate enough differences such that a "more discerning observer" would fail to find substantial similarity. See Warner Bros. Inc. v. Am. Broad. Companies, Inc., 720 F.2d 231, 241 (2d Cir. 1983) ("[N]umerous differences tend to undercut substantial similarity."). Accordingly, Plaintiffs' copyright claims are dismissed on the pleadings.
Because the Court has found no copyright infringement, Plaintiffs' accounting claims based on such infringement is moot. The Court also declines to award Defendants attorneys' fees pursuant to 17 U.S.C. § 505.
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C. Leave to Amend
A court "should freely give leave" to replead "when justice so requires." Fed. R. Civ. P. 15(a)(2). But "it is within the sound discretion of the district court to grant or deny leave to amend. A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (internal citations omitted).
Repleading would be futile when the "problem with [the pleader's] causes of action is substantive." See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Dismissal without leave is appropriate given that repleading would not alter the Court's 12(c) analysis: no reasonable finder of fact would find Power and Dangerous so substantially similar to support a claim of copyright infringement. Thus, "[t]he problem with [Plaintiffs'] causes of action is substantive; better pleading will not cure it." Id.
III. Conclusion
For the reasons set forth above, Defendants' Motion for Judgment on the Pleadings to Dismiss the Complaint is GRANTED WITH PREJUDICE. The Clerk of Court is directed to close the docket in this case.