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Case 2:16-cv-07761-R-RAO Document 75 Filed 07/24/17 Page 1 of 34 Page ID #:467

1 David Halberstadter (CA 107033)


david.halberstadter@kattenlaw.com
2 Joanna M. Hill (CA 301515)
joanna.hill@kattenlaw.com
3 KATTEN MUCHIN ROSENMAN LLP
2029 Century Park East, Suite 2600
4 Los Angeles, CA 90067-3012
Telephone: 310.788.4400
5 Facsimile: 310.788.4471
6 Attorneys for Defendants
STARZ ENTERTAINMENT, LLC, ANCHOR BAY ENTERTAINMENT, LLC,
7 CBS TELEVISION STUDIOS, DAVID KNOLLER, MARK CANTON,
RANDALL EMMETT, COURTNEY KEMP AGBOH and CURTIS JACKSON
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12
13 LARRY S. JOHNSON AND BLAKE ) Case No. 2:16-cv-07761-R-RAO
KELLER, )
14 )
Plaintiffs, )
15 ) DEFENDANTS NOTICE OF
v. ) MOTION AND MOTION FOR
16 ) JUDGMENT ON THE PLEADINGS
DAVID KNOLLER, STARZ )
17 ENTERTAINMENT LLC, ANCHOR ) [Fed. R. Civ. P. 12(c)]
BAY ENTERTAINMENT LLC, CBS )
18 TELEVISION, MARK CANTON, ) [Hon. Manuel L. Real]
RANDALL EMMETT, NIKKI )
19 TURNER, CURTIS JACKSON, ) [Defendants Request for Judicial Notice;
COURTNEY KEMP ABGOH AND ) Declaration of Joanna M. Hill; Notice of
20 DOES 1 THROUGH 10, ) Manual Filing; and [Proposed] Order
) filed concurrently herewith]
21 Defendants. )
)
22 ) Date: August 21, 2017
) Time: 10:00 a.m.
23 ) Place: Department 880
)
24 )
)
25 )
26
27
28

124781132V2
Case 2:16-cv-07761-R-RAO Document 75 Filed 07/24/17 Page 2 of 34 Page ID #:468

1 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:


2 PLEASE TAKE NOTICE that on August 21, 2017 at 10:00 a.m., or as soon
3 thereafter as the parties may be heard, before the Honorable Manual L. Real, United
4 States District Judge, in Courtroom 880, located at 255 East Temple Street, Los
5 Angeles, California 90012, defendants Starz Entertainment, LLC, Anchor Bay
6 Entertainment, LLC, CBS Television Studios, David Knoller, Mark Canton, Randall
7 Emmett, Courtney Kemp and Curtis Jackson (Jackson) (collectively, the Moving
8 Defendants) will and hereby do move for judgment on the pleadings dismissing the
9 First Amended Complaint (FAC) filed by plaintiffs Larry S. Johnson (Johnson) and
10 Blake Keller (collectively, the Plaintiffs) pursuant to Rule 12(c) of the Federal Rules
11 of Civil Procedure.
12 The Moving Defendants move for judgment on the pleadings on the grounds that
13 Plaintiffs fail to state any claim upon which relief can be granted. More specifically,
14 judgment should be entered on Plaintiffs first claim for copyright infringement
15 because, as a matter of law, (i) Plaintiffs have failed to sufficiently allege that any of
16 the creators or writers of Power had any access to Plaintiffs works, and (ii) there is no
17 substantial similarity between Plaintiffs works and the Moving Defendants allegedly
18 infringing work as a matter of law. Judgment should be entered on Plaintiffs second
19 claim for fraud because, as a matter of law, the Moving Defendants made no false
20 representations to Plaintiffs regarding the creation of the allegedly infringing work.
21 Lastly, Plaintiffs third claim for breach of contract also fails, among other reasons,
22 because the purported agency agreement between Johnson and defendant Nikki Turner
23 does not involve or implicate Jackson or any of his companies.
24 This Motion is made following the conference of counsel pursuant to Local Rule
25 7-3, which took place on July 13, 2017.
26 This Motion is based upon this Notice of Motion and the attached Memorandum
27 of Points and Authorities; the pleadings and papers on file in this action; the Moving
28 Defendants Request for Judicial Notice filed concurrently herewith and any other

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Case 2:16-cv-07761-R-RAO Document 75 Filed 07/24/17 Page 3 of 34 Page ID #:469

1 matters of which the Court may take judicial notice; the Declaration of Joanna M. Hill;
2 the works lodged by the Moving Defendants concurrently herewith; and such other
3 argument that may be presented to this Court at or before the hearing on this Motion.
4
5 Respectfully submitted,
6
7
Dated: July 24, 2017 KATTEN MUCHIN ROSENMAN LLP
8
9
By: /s/ Joanna M. Hill
10 Joanna M. Hill
Attorneys for Defendants
11 STARZ ENTERTAINMENT, LLC, ANCHOR
BAY ENTERTAINMENT, LLC, CBS
12 TELEVISION STUDIOS, DAVID KNOLLER,
MARK CANTON, RANDALL EMMETT,
13 COURTNEY KEMP AGBOH and CURTIS
JACKSON
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 TABLE OF CONTENTS
2
Page
3 I. INTRODUCTION ...................................................................................................1
4 II. FACTUAL BAGROUND .......................................................................................2
5 A. Allegations of the FAC .................................................................................2
6 B. Purported Similarities Between Tribulation and Power ...............................3
7 C. Summary of Tribulation ................................................................................4
8 D. Summary of Power........................................................................................6
9 III. ARGUMENT...........................................................................................................7
10 A. A Motion For Judgment on the Pleadings is Subject to the Same
Standards as a Motion to Dismiss. ................................................................7
11
B. Copyright Infringement Requires Proof of Both Access and
12 Substantial Similarity. ...................................................................................8
13 1. Access .................................................................................................8
14 2. Substantial Similarity ........................................................................10
15 a. This Court Should Consider and Compare Both
Tribulation and Power in Connection With This
16 Motion. ...................................................................................10
17 b. The Ninth Circuits Extrinsic Test for Substantial
Similarity Requires an Analysis of Only the
18 Protected Elements of Plaintiffs Work..................................12
19 c. Copyright Law Does Not Protect Generalized
Themes or Ideas or Stock Elements. ......................................13
20
C. Tribulation and Power Are Not Substantially Similar. ..............................14
21
1. The Plot of Power Bears No Similarity to Tribulation. ...................14
22
2. The Characters in Power and Tribulation Are Not Similar. ............18
23
a. The Protagonists ............................................................. 19
24
b. Secondary Characters ..................................................... 20
25
3. The Settings of the Two Works Are Completely Different..............21
26
4. The Two Works Share No Similar Dialogue....................................21
27
5. The Theme, Mood, Pace and Sequence of Events Are
28 Dissimilar. .........................................................................................22

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1 IV. PLAINTIFFS CLAIMS FOR FRAUD AND BREACH OF CONTRACT


ALSO FAIL. ..........................................................................................................23
2
A. Plaintiffs Fraud Claim Fails To Allege Sufficient Facts. ..........................23
3
B. Plaintiffs Breach of Contract Claim Also Fails. ........................................23
4
V. CONCLUSION .....................................................................................................24
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
26
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28

2
Case 2:16-cv-07761-R-RAO Document 75 Filed 07/24/17 Page 6 of 34 Page ID #:472

1 TABLE OF AUTHORITIES
2
Page(s)
3
Cases
4
Alexander v. Murdoch,
5
No. CV 105613 PAC JCF, 2011 WL 2802899 (S.D.N.Y. May 27,
6 2011) .......................................................................................................................... 18
7 Anderson v. Stallone,
8 No. 87-0592 WDKGX, 1989 WL 206431 (C.D. Cal. Apr. 25, 1989) ...................... 11

9 Ashcroft v. Iqbal,
556 U.S. 662 (2009)..................................................................................................... 7
10
11 Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)..................................................................................................... 7
12
Benay v. Warner Bros. Entmt, Inc.,
13
607 F.3d 620 (9th Cir. 2010) ................................................................... 14, 18, 20, 21
14
Berkic v. Crichton,
15 761 F.2d 1289 (9th Cir. 1985) ................................................................. 12, 13, 14, 18
16
Bernal v. Paradigm Talent & Literary Agency,
17 788 F. Supp. 1043 (C.D. Cal. 2010) ............................................................................ 9
18 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,
19 637 F.3d 1047 (9th Cir. 2011) ............................................................................... 7, 23
20 Campbell v. Walt Disney Co.,
21 718 F. Supp. 2d 1108 (N.D. Cal. 2010) ..................................................... 4, 11, 13, 18

22 Cavalier v. Random House, Inc.,


297 F.3d 815 (9th Cir. 2002) ........................................................................... 8, 12, 18
23
24 Chavez v. U.S.,
683 F.3d 1102 (9th Cir. 2012) ................................................................................. 7, 8
25
Corbett v. Otts,
26 205 Cal. App. 2d 78, 84 (1962) ................................................................................. 23
27
Cory Van Rijn, Inc. v. Cal. Raisin Advisory Bd.,
28 697 F. Supp. 1136 (E.D. Cal. 1987) .................................................................... 11, 15

1
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1 Dworkin v. Hustler Magazine Inc.,


2 867 F.2d 1188 (9th Cir. 1989) ..................................................................................... 7

3 Feist Publns, Inc. v. Rural Tel. Servs. Co.,


499 U.S. 340 (1991)..................................................................................................... 8
4
5 Funky Films, Inc. v. Time Warner Entmt Co., L.P.,
462 F.3d 1072 (9th Cir. 2006) ............................................................................ passim
6
Gable v. Natl Broad. Co.,
7
727 F. Supp. 2d 815 (C.D. Cal. 2010), affd sub nom. Gable v. Natl
8 Broad. Co., 438 F. Appx 587 (9th Cir. 2011) ................................................... passim
9 Heusey v. Emmerich,
10 14-cv-06810-AB (Ex) (C.D. Cal. Apr. 9, 2015) ........................................................ 23
11 Kabehie v. Zoland,
102 Cal. App. 4th 513 (2002) .................................................................................... 24
12
13 Kouf v. Walt Disney Pictures & Television,
16 F.3d 1042 (9th Cir. 1994) ............................................................................... 13, 18
14
Litchfield v. Spielberg,
15
736 F.2d 1352 (9th Cir. 1984) ................................................................................... 11
16
Loomis v. Cornish,
17 No. CV 12-5525 RSWL (JEMx), 2013 WL 6044349 (C.D. Cal. Nov.
18 13, 2013), affd 836 F.3d 991 (9th Cir. 2016) ....................................................... 9, 10
19 Lucky Break Wishbone Corp. v. Sears, Roebuck & Co.,
20 528 F. Supp. 2d 1106 (W.D. Wash. 2007), affd 373 F. App'x 752 (9th
Cir. 2010) ..................................................................................................................... 8
21
Lucky Leather, Inc. v. Mitsui Sumitomo Ins. Grp.,
22 No. CV1209510MMMPLAX, 2013 WL 12139116 (C.D. Cal. Feb. 26,
23 2013) .......................................................................................................................... 24
24 Meta-Film Assocs., Inc. v. MCA, Inc.,
25 586 F. Supp. 1346 (C.D. Cal. 1984) ...................................................................... 9, 11

26 Metcalf v. Bochco,
294 F.3d 1069 (9th Cir. 2002) ................................................................................... 13
27
28 Miller v. Universal City Studios, Inc.,
650 F.2d 1365 (5th Cir. 1981) ................................................................................... 11
2
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1 Musero, III v. Mosaic Media Grp. Inc.,


2 10-cv-1748 PA (JCx) (C.D. Cal. Aug. 9, 2010) ........................................................ 11

3 Newt v. Twentieth Century Fox Film Corp.,


No. 15-CV-02778-CBM-JPRX, 2016 WL 4059691 (C.D. Cal. July 27,
4
2016) ................................................................................................................... passim
5
Olson v. Natl Broad. Co.,
6 855 F.2d 1446 (9th Cir.1988) .................................................................. 13, 18, 19, 21
7
Rice v. Fox Broad. Co.,
8 330 F.3d 1170 (9th Cir. 2003) ................................................................. 12, 13, 18, 22
9 Schkeiban v. Cameron,
10 No. CV 12-0636-R, 2012 WL 12895722 (C.D. Cal. May 10, 2012) ................ 8, 9, 10
11 Schkeiban v. Cameron,
No. CV 12-0636-R (MANx), 2012 WL 5636281 (C.D. Cal. Oct. 4,
12
2012)) affd 566 F. Appx 616 (9th Cir. 2014) ......................................................... 10
13
Scott v. Meyer,
14 09-cv-6076 ODW (RZx) (C.D. Cal. Dec. 2, 2009) ................................................... 11
15
Shame on You Prods., Inc. v. Elizabeth Banks,
16 120 F. Supp. 3d 1123, 1165 (C.D. Cal. 2015) affd sub nom. Shame on
You Prods., Inc. v. Banks, No. 15-56372, 2017 WL 1732279 (9th Cir.
17
May 3, 2017) ........................................................................................................ 18, 21
18
Shaw v. Lindheim,
19 919 F.2d 1353 (9th Cir. 1990) ....................................................................... 18, 19, 20
20
Shwarz v. U.S.,
21 234 F.3d 428 (9th Cir. 2000) ..................................................................................... 11
22 Sid & Marty Krofft Telev. Prods., Inc. v. McDonalds Corp.,
23 562 F.2d 1157 (9th Cir. 1977) ................................................................................... 10
24 Thomas v. Walt Disney Co.,
25 337 F. Appx 694 (9th Cir. 2009) ................................................................................ 4

26 Three Boys Music Corp. v. Bolton,


212 F.3d 477 (9th Cir. 2000) ................................................................................... 8, 9
27
28 Walker v. Time Life Films, Inc.,
784 F.2d 44 (2d Cir. 1986) ........................................................................................ 14
3
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1 Weiss v. DreamWorks SKG,


2 No. CV1402890DDPAJWX, 2015 WL 12711658 (C.D. Cal. Feb. 9,
2015) ............................................................................................................................ 8
3
Wild v. NBC Universal, Inc.,
4
788 F. Supp. 2d 1083 (C.D. Cal. 2011), affd sub nom. Wild v. NBC
5 Universal, 513 F. Appx 640 (9th Cir. 2013) .............................................................. 7
6 Zella v. E.W. Scripps Co.,
7 529 F. Supp. 2d 1124 (C.D. Cal. 2007) ......................................................... 10, 11, 12

8 Other Authorities
9 4-13 Nimmer on Copyright 13.03[B][1][b] ................................................................. 11
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4
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1 MEMORANDUM OF POINTS AND AUTHORITIES


2 I. INTRODUCTION
3 Plaintiffs have alleged that the Moving Defendants infringed Plaintiffs two-part
4 copyrighted work, Tribulation of a Ghetto Kid and Tribulation of a Ghetto Kid: Part 2
5 (together, Tribulation), in the writing, production and distribution of the Starz
6 television series, Power. This claim is wholly without merit.
7 First, Plaintiffs allegations respecting the Moving Defendants purported access
8 to Plaintiffs works are speculative, at best. Plaintiffs most crucial averments are
9 alleged on information and belief; specifically, that Plaintiffs shared their work with a
10 third party who has no connection to the Starz series, who then purportedly shared
11 Plaintiffs work with Jackson. These allegations are conclusory and are entitled to no
12 deference whatsoever in assessing the adequacy of the FAC.
13 Second, other than the fact that both works involve an African-American
14 protagonist , they bear no similarities beyond the generalized theme of a crime drama
15 and stock creative elements that flow from this most basic of premises. Power is a
16 modern day story of a successful New York drug dealer and his desire to leave behind
17 the drug trade and pursue only legal endeavors - in particular, an elite Manhattan
18 nightclub. Tribulation, by contrast, takes place in an inner city neighborhood in
19 Virginia and tells the story of how a triple murder sets off a wave of violence in
20 warring communities and the impact this violence has on the 16-year-old protagonist.
21 Plaintiffs describe the purported similarities between Tribulation and Power at such an
22 abstract level of generality that Plaintiffs work arguably would be similar to almost
23 every other television series or film involving big-city violence and drug dealing. But
24 when the Court examines the works themselves (as it is permitted to do on a motion for
25 judgment on the pleadings), disregarding Plaintiffs random list of imagined
26 similarities, it is evident that Plaintiffs claim of infringement is meritless. The
27 purported similarities (i) lack context, (ii) constitute stock elements of any show
28 involving drug dealing and/or (iii) do not actually exist in both works. In sum, the

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1 works differ entirely as to their plots, characters, themes, moods, pace and sequence of
2 events.
3 Last, Plaintiffs state law claims for fraud and breach of contract also fail. The
4 Moving Defendants are not alleged to have made any false representations to Plaintiffs
5 whatsoever, and Plaintiffs fail to allege credibly and with specificity how they
6 supposedly relied to their detriment on any representations by the Moving Defendants.
7 And it is apparent from the only agreement that is alleged in the FAC that while
8 Johnson may have entered into some type of agency agreement with defendant Nikki
9 Turner, he entered into no agreement at all with Jackson.
10 Accordingly, the Moving Defendants respectfully request that the Court dismiss
11 the FAC with prejudice, and award the Moving Defendants their attorneys fees as the
12 prevailing party because (i) Plaintiffs claim of access is deficient as a matter of law,
13 (ii) the total lack of substantial similarity between the two works may be readily
14 determined by the Court as a matter of law, and (iii) the state law claims lack sufficient
15 allegations.
16 II. FACTUAL BAGROUND
17 A. Allegations of the FAC
18 Plaintiffs assert three causes of action against the Moving Defendants:
19 (1) copyright infringement; (2) fraud; and (3) breach of contract.1 Plaintiffs allege
20 that the television series, Power, infringes on Plaintiffs work, Tribulation.2 Plaintiffs
21 allege that in 2003-2004, Johnson created Tribulation, and in 2005, Johnson gave a
22
1
The breach of contract claim is asserted only against defendants Jackson and
23 Nikki Turner (Turner). Turner has not yet entered an appearance in this action.
2
24 This is the third lawsuit filed by Johnson alleging these same claims. In
September 2015, Johnson filed a copyright infringement claim in the Eastern District of
25 Virginia against almost all of the same defendants (Case No. 15-cv-00526-HEH). The
district court in that action sua sponte dismissed the complaint for failure to state a
26 claim (Dkt. No. 2). See Defendants Answers in this action, Dkt. Nos. 60-68, 31. In
June 2016, Johnson filed another complaint, also in the Eastern District of Virginia,
27 alleging the same claims of infringement against almost all of the same defendants
named in this action. (Case No. 16-cv-00088). See FAC 31. Johnson voluntarily
28 dismissed that complaint (Dkt. No. 14). See Defendants Answers in this action, Dkt.
Nos. 60-68, 31.
2
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1 copy of it to Turner. (FAC 7, 23.) Thereafter, Turner and Johnson corresponded


2 about the works and began working together to develop projects to distribute literary
3 material about the sex, guns, cash, brutal highs and short lives of persons involved in
4 legally questionable situations in tough streets. (Id. at 24-25.) Plaintiffs allege
5 that Turner was employed by Jacksons company, G-Unit Books, who also
6 purportedly developed projects centered around the same themes. (Id. at 25.)
7 Solely on information and believe, Plaintiffs allege that Turner knowingly and
8 intentionally gave Jackson a copy of Plaintiffs works when she was employed by G-
9 Unit Books and then Jackson and/or Turner purportedly transferred the works to each
10 of the other named Defendants. (Id. at 29.) Plaintiffs claim that the Moving
11 Defendants infringed on Plaintiffs works by substantially copying and publicly
12 displaying, or authorizing the copying and displaying of Power. (Id. at 54.)3
13 B. Purported Similarities Between Tribulation and Power
14 Plaintiffs allege that both Tribulation and Power explore the life of an African-
15 American protagonist drug dealer using his ill-gotten gains to transition into the realm
16 of legitimate business. 4 (Id. at 32.) Plaintiffs argue that the protagonists in both
17 works (i) have a 360 degree waves hairstyle and goatee facial hair, (ii) are smart,
18 (iii) have parents who are both deceased, and (iv) aspire to leave behind the drug trade
19 in favor of a legitimate life by owning a nightclub. (Id. at 35-36, 44.) Both works
20 also purportedly share similar plot lines in that they involve (i) ties to a Latin drug
21 supplier based out of Miami, (ii) a scene where the protagonist reunites with his
22 estranged family for dinner and his wife sheds a tear in private, (iii) the protagonists
23 hiring of an attorney who appears at a bail hearing on behalf of the protagonist, who is
24 subsequently denied bail, (iv) an associate of the protagonist who was a former college
25
3
In connection with their fraud claim, Plaintiffs allege that the Moving
26 Defendants knew Power infringed upon Plaintiffs works yet held themselves out to the
public as being the creators of Power. (Id. at 68.)
27 4
As the Court will see when it reviews the two works, Plaintiffs description of
28 the plot of their work is misleading and inaccurate. The protagonist in Tribulation is
not a drug dealer, but rather, a 16-year-old young man.
3
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1 basketball star but suffered a career ending injury, and (v) a white woman who
2 infiltrates the protagonists inner circle and later works with the FBI to further their
3 investigation into the protagonists drug ring. (Id. at 38, 41-42, 45-46.) Both works
4 also purportedly feature a similar love interest named Angela/Angie who has lots of
5 mental fortitude, [and is] relaxed, easy to be around, and able to fit into any situation.
6 (Id. at 40.) Finally, Plaintiffs claim there is a similarity in dialogue in a scene
7 involving the Latin drug supplier and the protagonist. (Id. at 39, 43.)
8 C. Summary of Tribulation5
9 Tribulation chronicles the impact of a string of violent events on the lives of
10 various teenagers and young adults living in an inner city neighborhood in Richmond,
11 Virginia. There is no clear protagonist, but if one were to look to the title of the works
12 (Tribulation of a Ghetto Kid), the character most fitting of that description is a teenage
13 boy named Jeffrey Owens.6 Jeffrey and his two younger sisters are raised by their
14 single mother in a housing project in Richmond. Jeffrey is a kind and intelligent young
15 man who manages to stay out of trouble and away from the drug business that plagues
16 his community until his mother is killed in a drive-by shooting. Jeffreys life then takes
17 a turn for the worse, as his sisters are taken into foster care and he resorts to drug
18 dealing in order to make money.
19 The first book of Tribulation begins with a gambling dispute between two
20 groups, LA and Black, on the one hand, and three men from a neighboring housing
21 5
Plaintiffs counsel informed Moving Defendants counsel that copies of
Plaintiffs works could be obtained through Amazon. Based on this advice, the Moving
22 Defendants purchased a copy of both works comprising Tribulation. The summary of
Tribulation is derived from these two documents which are also attached to the
23 Declaration of Joanna M. Hill (Hill Decl.) as Exhibits B & C. The Moving
Defendants have requested that the Court take judicial notice of these works. Thomas
24 v. Walt Disney Co., 337 F. Appx 694, 695 (9th Cir. 2009) (district court properly
considered materials alleged in complaint in finding no substantial similarity and
25 granting motion to dismiss); Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108,
1111, n. 3 (N.D. Cal. 2010) (taking judicial notice of plaintiffs screenplay and
26 allegedly infringing film because the contents of each were alleged in the complaint).
6
27 In fact, the back cover of the first novel of Tribulation focuses exclusively on
Jeffrey: Meet Jeffrey Owens [sic], the modern day version of the biblical Job; hes a
28 model student and inspiring [sic] rapper/poet who strives hard to live right in an
environment filled with gross images of death and despair. (Hill Decl., Ex. B.)
4
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1 project referred to as the Gray Stone Projects, on the other hand.7 After a heated
2 exchange, Black kills the three men from the Gray Stone Projects. From there, a trail
3 of violence ensues as friends and family of the slain victims seek revenge and begin
4 attacking people in Jeffreys community. This war eventually leads to the murders of
5 Jeffreys mother and LAs pregnant girlfriend, Angie.
6 Percy Prince Miller is Jeffreys mentor and a former drug kingpin in
7 Richmond during the 1980s.8 After his release from prison following a murder
8 conviction, Prince continues to sell drugs, but soon after, retires from the drug trade.
9 He moves away from his neighborhood (but still lives in Virginia) and maintains a low
10 profile operating as a law abiding citizen and an investor in a restaurant. Princes
11 estranged girlfriend, Wanda, and their child, still live in Jeffreys neighborhood. After
12 Wanda witnesses Black kill the three men during the gambling dispute, Prince has
13 Wanda and his son move in with him out of fear that they may also be killed.
14 When the police begin investigating the triple murder, LA and Black go on the
15 run. LA hides out in North Carolina while Black heads to Virginia Beach with Christy,
16 a white women he is dating. Eventually, Christy turns Black in to the police for the
17 triple murder in the hope that her cooperation will result in a lighter sentence for her
18 actual boyfriend, who is currently incarcerated. While hiding in North Carolina, LAs
19 pregnant girlfriend (Angie) is raped and murdered by Bernard, a relative of the men
20 Black murdered.
21 By the end of the second book, Prince has been arrested for the triple murder
22 because Black lied and told the police that Prince ordered him to kill the three men. In
23 the final scene of the second book, LA finds out where Bernard is hiding and, along
24
25
7
LA, Black and Jeffrey are friends and live in the same neighborhood.
26 8
For purposes of this lawsuit, Plaintiffs characterize Prince as the works
27 protagonist, rather than Jeffrey. But this is demonstrably false. The back covers of
both novels provide a summary of each, and tellingly do not even mention Prince or
28 drug dealing. Because it makes no difference whatsoever to the viability of the FAC,
this Motion treats Prince as the protagonist of Tribulation.
5
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1 with Jeffrey and one other companion, sets a plan to capture and kill Bernard. LA and
2 Bernard are killed in a subsequent shoot out, but Jeffrey manages to escape.
3 D. Summary of Power9
4 Power takes place in present day Manhattan and centers on James Ghost St.
5 Patrick, the owner of a new and popular New York City nightclub called Truth. Ghost
6 is a successful drug kingpin who wants to retire from the drug business and pursue a
7 legitimate career as a nightclub owner. In the pilot episode, Ghost is portrayed as the
8 calm but stern head of an organized network of criminals who smuggle drugs in and out
9 of New York City. To an outsider, Ghost, often dressed in well-tailored suits, seems
10 like an upright business man; but his inner circle knows that he is capable of violence.
11 During Season 1, Ghost and Tommy (Ghosts business partner and best friend)
12 secure a new distribution deal with drug supplier, Felipe Lobos.10 Using the drugs they
13 get from Lobos, Ghost becomes the main drug supplier for multiple other drug
14 networks, essentially serving as a middle man between Lobos and the other networks.
15 Ghost is married to Tasha and the couple share a Manhattan home with their
16 three children (one boy and two girls) and Tashas mother. Tasha does not like the idea
17 of Ghost leaving behind the drug trade and, throughout the first season, feels that he is
18 drifting away from her. Most of the first season takes place in and around upscale
19 neighborhoods in Manhattan.
20 In the pilot episode, Ghost runs into a former flame, Angela Valdez, when she
21 shows up at Truth. Throughout the first season, Ghost and Angela rekindle their prior
22 relationship and fall back in love; however, Ghost soon discovers that Angela is an
23 assistant U.S. attorney working on a task force aimed at prosecuting Ghosts supplier,
24
25
9
The summary of Power is derived from the first season of the series, which is
26 also attached to the Hill Decl. as Exhibit D. The Moving Defendants have requested
that the Court take judicial notice of the contents of the first season of Power. See
27 supra n. 6.
10
28 Contrary to Plaintiffs allegations, there is no indication that Lobos operates
solely out of Miami.
6
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1 Felipe Lobos. The first season highlights Ghosts love triangle and how that is a
2 reflection of his own internal struggle to leave behind the drug trade.
3 The main story lines of the first season are as follows: (1) Ghosts crew fights off
4 attacks from a mysterious rival gang; (2) he pursues a relationship with Angela all the
5 while slipping further away from Tasha; (3) he continues to try and transition out of the
6 drug life and promote the growth of Truth; and (4) he tries to evade criminal
7 prosecution (by Angela and her peers) and keep his drug supplier, Lobos, content.
8 III. ARGUMENT
9 A. A Motion For Judgment on the Pleadings is Subject to the Same
10 Standards as a Motion to Dismiss.
11 Rule 12(c) of the Federal Rules of Civil Procedure provides that [a]fter the
12 pleadings are closed but early enough not to delay trial a party may move for
13 judgment on the pleadings. In deciding a Rule 12(c) motion, the court applies the
14 same standard that is applicable to a motion under Rule 12(b)(6), which provides that a
15 court may dismiss a complaint for failure to state a claim upon which relief can be
16 granted. Chavez v. U.S., 683 F.3d 1102, 1108 (9th Cir. 2012); Dworkin v. Hustler
17 Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
18 In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) and Ashcroft v.
19 Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court clarified the standards for judging
20 a motion to dismiss.11 A motion for judgment on the pleadings must be granted unless
21 the plaintiff alleges more than the mere possibility of misconduct, otherwise, the
22 complaint has allegedbut it has not shownthat the pleader is entitled to relief.
23 Wild v. NBC Universal, Inc., 788 F. Supp. 2d 1083, 1097 (C.D. Cal. 2011), affd sub
24 nom. Wild v. NBC Universal, 513 F. Appx 640 (9th Cir. 2013) (quoting Iqbal, 556
25 U.S. at 679); Twombly, 550 U.S. at 545 (Factual allegations must be enough to raise a
26 right to relief above the speculative level). Although a plaintiffs allegations are
27 11
The Twombly/Iqbal plausibility standard applies to Rule 12(c) motions.
28 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054, n. 4 (9th
Cir. 2011).
7
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1 generally taken as true, labels and conclusions are insufficient to defeat a motion for
2 judgment on the pleadings. Newt v. Twentieth Century Fox Film Corp., No. 15-CV-
3 02778-CBM-JPRX, 2016 WL 4059691, at *1 (C.D. Cal. July 27, 2016); Chavez, 683
4 F.3d at 1108 (Mere conclusory statements in a complaint and formulaic recitations of
5 the elements of a cause of action are not sufficient.).
6 B. Copyright Infringement Requires Proof of Both Access and
7 Substantial Similarity.
8 To prevail on a claim for copyright infringement, a plaintiff must show (i)
9 ownership of a valid copyright and (ii) that the defendant copied original elements of
10 that work. Feist Publns, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340, 361 (1991); see
11 also Funky Films, Inc. v. Time Warner Entmt Co., L.P., 462 F.3d 1072, 1076 (9th Cir.
12 2006). The second prong of this analysis requires that the plaintiff sufficiently allege
13 the infringer had access to [his] copyrighted work and that the works at issue are
14 substantially similar in their protected elements. Cavalier v. Random House, Inc., 297
15 F.3d 815, 822 (9th Cir. 2002); see also Funky Films, 462 F.3d at 1076.
16 1. Access
17 Actual copying may be proven by direct or circumstantial evidence. Lucky
18 Break Wishbone Corp. v. Sears, Roebuck & Co., 528 F. Supp. 2d 1106, 1122 (W.D.
19 Wash. 2007), affd, 373 Fed. Appx. 752 (9th Cir. 2010); Three Boys Music Corp. v.
20 Bolton, 212 F.3d 477, 482 (9th Cir. 2000). In order to demonstrate access, a plaintiff
21 must sufficiently allege that the purported infringer had a reasonable opportunity, not
22 simply a bare possibility, of seeing the plaintiffs work prior to the creation of the
23 infringing work. Three Boys Music, 212 F.3d at 482. Access, however, may not be
24 inferred through mere speculation or conjecture. Id.; Weiss v. DreamWorks SKG, No.
25 CV1402890DDPAJWX, 2015 WL 12711658, at *3 (C.D. Cal. Feb. 9, 2015) (granting
26 motion to dismiss because allegations of access were mere conjecture); Schkeiban v.
27 Cameron, No. CV 12-0636-R (MANx), 2012 WL 12895722, at *1-2 (C.D. Cal. May
28 10, 2012) (granting motion to dismiss where Plaintiff [] pled no facts indicating that it

8
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1 was reasonably possible that defendants had access to the work but rather merely
2 speculate[d] that it occurred without foundation.)12. The plaintiff must allege either:
3 (i) a particular chain of eventsbetween the plaintiffs work and the defendants
4 access to that work or (ii) that the plaintiffs work has been widely disseminated.
5 Three Boys Music, 212 F.3d at 482.
6 If a plaintiff claims that a defendant had access to plaintiffs work via a third
7 party, the plaintiff must allege a sufficient nexus between the individual who
8 possesses knowledge of a plaintiffs work and the creator of the allegedly infringing
9 work. Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1357, 1364 (C.D.
10 Cal. 1984)13. The plaintiff must allege that he/she submitted his/her work to an
11 intermediary who either (1) has supervisory responsibility for the allegedly
12 infringing project, (2) contributed ideas and materials to it, or (3) worked in the same
13 unit as the creators. Gable v. Natl Broad. Co., 727 F. Supp. 2d 815, 824 (C.D. Cal.
14 2010), affd sub nom. Gable v. Natl Broad. Co., 438 F. Appx 587 (9th Cir. 2011)
15 (emphasis added); see also Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp.
16 1043, 1057-59 (C.D. Cal. 2010) (no reasonable possibility of access where the
17 plaintiffs script was sent to someone who worked at the same company as the
18 infringing shows creator, and there was no evidence beyond speculation that the two
19 discussed the script); Loomis v. Cornish, No. CV 12-5525 RSWL (JEMx), 2013 WL
20 6044349, at *4 (C.D. Cal. Nov. 13, 2013), affd 836 F.3d 991 (9th Cir. 2016)
21 (insufficient evidence of access where plaintiff never met with writers of the allegedly
22
23
24
12
In Schkeiban, the plaintiff alleged that he sent his script to several individuals
25 and entities in the film industry, with the implication that one of those
individuals/entities passed the script along to the defendants. This Court held that such
26 allegations were pure speculation. 2012 WL 12895722, at *1.
13
27 In Meta-Film, the plaintiff showed his work to a director who was under contract
with the defendant studio and worked on the studio lot, but could not demonstrate any
28 connection between that director and the studios allegedly infringing project. Id. at
1356-59.
9
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1 infringing work and the alleged intermediary had no involvement with the creation of
2 the infringing work)14.
3 Here, Plaintiffs have not sufficiently alleged that the Moving Defendants had
4 access to Plaintiffs work. Rather, on information and belief, they assume that because
5 Johnson gave copies of Tribulation to defendant Turner, Turner must have given
6 Plaintiffs materials to Jackson and Jackson therefore must have given copies of those
7 materials to the remaining Defendants in order to create Power. Plaintiffs do not and
8 cannot allege that Turner had any role in the creation or development of Power. The
9 remaining allegations are speculative and allege only a bare possibility of access,
10 which is not sufficient because there is no claim that the creators, distributors or
11 producers of Power actually saw Plaintiffs materials. See Gable, 727 F. Supp. 2d at
12 824; Loomis, 2013 WL 6044349, at *4. Therefore, the Court should not take as true
13 these allegations asserted on information and belief.
14 Nonetheless, even if Plaintiffs were able to demonstrate that all of the Moving
15 Defendants had access to Plaintiffs materials, Plaintiffs still must demonstrate that
16 their allegations regarding similarities, if true, amount to substantial similarity.15
17 2. Substantial Similarity
18 a. This Court Should Consider and Compare Both Tribulation
19 and Power in Connection With This Motion.
20 Courts in this circuit regularly compare the works in dispute at the pleading
21 stage in order to determine whether they are substantially similar. See, e.g., Zella v.
22 E.W. Scripps Co., 529 F. Supp. 2d 1124, 1133-39 (C.D. Cal. 2007) (comparing a
23 treatment and script, with television series, Rachel Ray); Schkeiban v. Cameron, No.
24 CV 12-0636-R (MANx), 2012 WL 5636281, at *1 (C.D. Cal. Oct. 4, 2012)) affd 566
25 F. Appx 616 (9th Cir. 2014) (comparing script with movie). And courts routinely
26 14
Schkeiban, 2012 WL 12895722, at *1 (the mere sending of a work to contacts
in Hollywood is insufficient to demonstrate access.)
27 15
No amount of proof of access will suffice to show copying if there are no
28 similarities. Sid & Marty Krofft Telev. Prods., Inc. v. McDonalds Corp., 562 F.2d
1157, 1172 (9th Cir. 1977).
10
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1 dismiss meritless copyright infringement claims at the pleading stage where no


2 substantial similarity is found. See, e.g., Zella, 529 F. Supp. 2d at 1139; Newt, 2016
3 WL 4059691, at *1 (comparing plaintiffs screenplay and documentary with television
4 series, Empire); Musero, III v. Mosaic Media Grp. Inc., 10-cv-1748 PA (JCx) (C.D.
5 Cal. Aug. 9, 2010) (Dkt. No. 28) (comparing plaintiffs screenplay with the movie,
6 Bruno); Scott v. Meyer, 09-cv-6076 ODW (RZx) (C.D. Cal. Dec. 2, 2009) (Dkt. No.
7 20) (comparing plaintiffs novel with Twilight saga novel); Campbell, 718 F. Supp. 2d
8 at 1116 (comparing plaintiffs screenplay with the movie, Cars).16 17
9 Further, the works themselves, rather than Plaintiffs allegations, should control
10 the Courts analysis because the Court need not accept as true allegations contradicted
11 by documents referenced in the complaint or by facts which may be judicially noticed.
12 Cory Van Rijn, Inc. v. Cal. Raisin Advisory Bd., 697 F. Supp. 1136, 1138 (E.D. Cal.
13 1987) (In copyright infringement cases the works themselves supersede and control
14 any contrary allegations, conclusions or descriptions of the works.); Shwarz v. U.S.,
15 234 F.3d 428, 435 (9th Cir. 2000).
16 Finally, the Court should disregard Plaintiffs list of random purported
17 similarities alleged throughout the FAC because the Ninth Circuit has held that such
18 lists, are inherently subjective and unreliable, particularly where the list emphasizes
19 random similarities scattered throughout the works. Litchfield v. Spielberg, 736 F.2d
20 1352, 1356-57 (9th Cir. 1984); Anderson v. Stallone, No. 87-0592 WDKGX, 1989 WL
21 206431, at *15 (C.D. Cal. Apr. 25, 1989) (rejecting experts list of similarities as it
22 merely identified general themes and basic plots [] not protected by Copyright.)
23 16
Discovery is unnecessary because discovery would not change the fact that the
two works lack any concrete or articulable similarities. Funky Films, 462 F.3d at
24 1077; see also Gable, 727 F. Supp. 2d at 836-838 (C.D. Cal. 2010) (courts can compare
general audience literary works without expert testimony).
25 17
Any prior, unpublished scripts of Power are not relevant to the Courts analysis
26 of substantial similarity. Meta-Film, 586 F. Supp. at 1360 (citing Miller v. Universal
City Studios, Inc., 650 F.2d 1365, 1375 (5th Cir. 1981) (the ultimate test of
27 infringement was the film as broadcast rather than the underlying scripts.); 4-13
Nimmer on Copyright 13.03[B][1][b] (stating that courts [ ] routinely rejec[t]
28 requests to consider earlier drafts of [an infringing work] when determining whether
the works are substantially similar).
11
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1 Here, Plaintiffs specifically describe both Tribulation and Power and include a
2 discussion of their random purported similarities. (FAC 16, 23.) Review of the two
3 works will reveal that the only similarities that exist between the two are superficial and
4 generalized themes and plot points that are not protectable or sufficient to establish
5 substantial similarity. Accordingly, the Moving Defendants respectfully request that
6 the Court compare the works at issue and grant the Moving Defendants motion for
7 judgment on the pleadings based also on the lack of substantial similarity.
8 b. The Ninth Circuits Extrinsic Test for Substantial Similarity
9 Requires an Analysis of Only the Protected Elements of
10 Plaintiffs Work.
11 The Ninth Circuit employs a two-part test that combines an extrinsic and
12 intrinsic analysis to determine substantial similarity. Rice v. Fox Broad. Co., 330 F.3d
13 1170, 1174 (9th Cir. 2003); see also Funky Films, 462 F.3d at 1077 (copyright plaintiff
14 must satisfy both an extrinsic test, focusing on objective elements, and an intrinsic test,
15 focusing an ordinary persons subjective impressions).18 The extrinsic test ignores
16 basic plot ideas but instead focuses on articulable similarities between the plot,
17 themes, dialogue, mood, setting, pace, characters, and sequence of events in the two
18 works. Funky Films, 462 F.3d at 10; see also Berkic v. Crichton, 761 F.2d 1289, 1293
19 (9th Cir. 1985). Notably, the Court must look only at whether the protectable
20 elements, standing alone, are substantially similar. Funky Films, 462 F.3d at 1077
21 (emphasis in original); Cavalier, 297 F.3d at 822. A motion for judgment on the
22 pleadings should be granted if, after comparing the works, a court concludes that no
23 reasonable jury could find that the works are substantially similar, or if it concludes that
24 the similarities between the two works pertain only to unprotected elements. Zella,
25 529 F. Supp. 2d at 1131.
26
18
27 Although the intrinsic test is a subjective assessment, a finding of lack of
extrinsic similarity (which may be determined at the pleading stage) is fatal to a
28 plaintiffs copyright claim as a matter of law. See, e.g., Zella, 529 F. Supp. 2d at 1133-
39.
12
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1 As discussed in the following sections, the claimed similarities between


2 Tribulation and Power consists almost entirely of unprotectable elements including, but
3 not limited to, Plaintiffs description of Tribulation as a work that explore[s] the life of
4 an African-American protagonist drug dealer using his ill-gotten gains to transition into
5 the realm of legitimate business. (FAC 32.)
6 c. Copyright Law Does Not Protect Generalized Themes or
7 Ideas or Stock Elements.
8 It is a fundamental principle that any claim of substantial similarity must be
9 based on more than [g]eneral plot ideas [as they] are not protected by copyright law
10 [and] remain forever the common property of artistic mankind. Berkic, 761 F.2d at
11 1293-94 ([A]dventures of a young professional who courageously investigates, and
12 finally exposes, the criminal organization was a basic and unprotected plot); see also
13 Funky Films, 462 F.3d at 1081 (general plot idea of a family-run funeral home, the
14 fathers death, and the return of the son who assists in maintaining the business was not
15 protected); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.
16 1994) (finding that the general plot idea of the life struggle of [shrunken] kids fighting
17 insurmountable dangers was not protected); Olson v. Natl Broad. Co., 855 F.2d 1446,
18 1450 (9th Cir.1988) (the general idea of a group action-adventure series in which
19 Vietnam veterans do good deeds and are portrayed in a positive light is not
20 protectable); Campbell, 718 F. Supp. 2d at 1112 (finding that the young mentee-older
21 mentor storyline to be a basic plot idea [] not protected by copyright law.).19
22 The use of elements that constitute scnes faire or stock scenes which are
23 indispensable and naturally associated with generic plot lines, or are standard to the
24 treatment of a certain topic, are also not protectable. Rice, 330 F.3d at 1175 (the
25 sequencing of first performing [a magic] trick and then revealing the secrets behind the
26
19
27 See also Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002) ([o]ne cannot
copyright the idea of an idealistic young professional choosing between financial and
28 emotional reward, or of love triangles among young professionals that eventually
become strained, or of political forces interfering with private action.).
13
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1 trick is . . . scenes a faire and typical of any work about magic tricks); Benay v.
2 Warner Bros. Entmt, Inc., 607 F.3d 620, 627-28 (9th Cir. 2010) (scenes featuring a
3 protagonist sailing into Japan, the Imperial Palace and battle scenes in various places in
4 Japan were scnes faire and typical of a work centered on an American war veteran
5 who travels to Japan to help the Emperor fight a samurai rebellion); Berkic, 761 F.2d
6 at 1294 (depictions of the small miseries of domestic life, romantic frolics at the
7 beach, and conflicts between ambitious young people on one hand, and conservative or
8 evil bureaucracies on the other . . . are familiar scenes and themes [that] are among the
9 very staples of modern American literature); Gable, 727 F. Supp. 2d at 841 (storylines
10 driven by the basic plot idea of turning one's life around, and [t]he concept of a bad
11 person spending time in prison, and then trying to clean up their act by making
12 restitution and getting a job are unprotectable scenes-a-faire); Walker v. Time Life
13 Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986) (Elements such as drunks, prostitutes,
14 vermin and derelict cars would appear in any realistic work about . . . policemen in the
15 South Bronx, and thus are unprotectable scnes faire). Numerous differences,
16 however, tend to undercut substantial similarity. Gable, 727 F. Supp. 2d at 84142
17 (Although there are some general similarities between the works, the similarities pale
18 in comparison to the significant differences between the works.)
19 C. Tribulation and Power Are Not Substantially Similar.
20 1. The Plot of Power Bears No Similarity to Tribulation.
21 Plaintiffs provide a list of similarities that are so general that Plaintiffs could
22 essentially argue that any drug-based television show or movie has infringed upon
23 Plaintiffs work. See Benay, 607 F.3d at 629 (9th Cir. 2010) (finding no substantial
24 similarity even though at a very high level of generality, both works share certain plot
25 similarities.) The story line of a drug dealer, with ties to a Latin drug supplier, who
26
27
28

14
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1 engages in legitimate businesses is well trodden territory and the subject of numerous
2 television series and films.20
3 The focus of Power is Ghost, a successful drug kingpin who wants to retire from
4 the drug trade and pursue a legitimate business of owning and operating high-end
5 nightclubs. At the center of his internal conflict are his two converging love interests
6 that represent the two opposite life paths Ghost must choose between. Ghost wants to
7 pursue a serious relationship with a former girlfriend, Angela Valdez, who is now a
8 federal prosecutor, but he cannot do that if he is still in the drug business. On the other
9 hand, Ghost is married to Tasha, and although she loves Ghost, she has no desire for
10 him to leave the drug business.
11 Tribulation bears no resemblance to Power whatsoever. The only commonality
12 between the two works is that the protagonists in each is African-American, and at one
13 point, was a drug dealer. Plaintiffs misleadingly allege that Tribulation is about an
14 African-American protagonist drug dealer using his ill-gotten gains to transition into
15 the realm of legitimate business, but Tribulation spends very little time discussing
16 Princes transition out of the drug business. Most of Tribulation is set in the present
17 day (when Prince is no longer a drug dealer) and only occasionally flashes back to the
18 height of Princes drug dealing in the 1980s. As the district court stated in Cory Van
19 Rijn, 697 F. Supp. at 1138, in copyright infringement cases, the works themselves
20 supersede and control any contrary allegations, conclusions or descriptions of the
21 works. Further, the primary plot lines in Tribulation focus on (i) the violence that
22 ensues after LA and Black murder three men following a gambling dispute, (ii) LA and
23 Black running from the police while Bernard, a relative of two of the victims, goes on a
24 killing spree in an attempt to locate his relatives killers, and (iii) Jeffreys (the true
25
26
20
Television series like The Wire, Empire, Breaking Bad, Narcos, and Weeds, and
27 films like Carlitos Way, American Gangster, New Jack City and Scarface, all feature
these generic plot lines. See Request for Judicial Notice; see also Newt, 2016 WL
28 4059691, at *3-6 (discussing elements of television series, Empire).

15
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1 protagonist) attempts to recover from the pain of losing his mother and having his
2 sisters taken into foster care. There are no similar plot lines in Power.
3 Plaintiffs also allege that both works feature (i) the protagonists relationship
4 with a Latin drug supplier, (ii) a scene where the protagonist reunites with his
5 estranged family for dinner and his wife sheds a tear in private, (iii) the protagonists
6 hiring of an attorney who appears at a bail hearing on behalf of the protagonist who is
7 subsequently denied bail, and (iv) a white woman who infiltrates the protagonists inner
8 circle and later works with the FBI to further their investigation into the protagonists
9 drug ring. (FAC 38, 41-42, 45-46.) These purported similarities are inaccurate and
10 irrelevant for several reasons.
11 First, in Tribulation, Princes ties to a Dominican drug supplier, Pedro, stem
12 from Princes prior incarceration. Very little time is actually spent discussing Prince
13 and Pedros business arrangement or drug dealing in general. Instead, the focus of
14 Tribulation is the violence in an inner city neighborhood and how the deaths of several
15 individuals affect the actions of the various characters.21 In Power, Ghost and his
16 Mexican drug supplier, Felipe Lobos, did not meet in prison and the plot line featuring
17 this arrangement is prevalent throughout the first season.22 Nonetheless, it is utterly
18 common to any show about drug dealing that a drug dealer would meet with his
19 supplier and particularly, a Latin drug cartel.23
20 Second, in Tribulation, Prince and his estranged girlfriend, Wanda, reunite after
21 several years apart when Prince discovers that her life might be in danger after she
22 witnesses Black commit the triple murder. The scene Plaintiffs describe where Wanda
23 sheds a private, happy tear occurs when she sees her family reunited as Prince and
24
21
25 While some of the characters in Tribulation are drug dealers, the deaths of the
key characters in Tribulation are not drug related.
26 22 Plaintiffs incorrectly allege that Ghost gets his drugs from a man named Pedro.
In fact, none of the primary or secondary characters in Power is named Pedro.
27 23
It is also a scne faire that a work centered on the generic plot of drug dealing
28 would obviously feature some scenes involving conflict surrounding how the
protagonist acquires his drugs, and from whom. (FAC 38.)
16
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1 their son walk into a restaurant together. In Power, Tasha (Ghosts wife) gets
2 emotional after having dinner with Ghost and their children; but that is because she
3 knows Ghost is slipping away from her. Unlike Wanda, this is not a happy moment for
4 Tasha.
5 Third, although both works do depict the protagonist hiring an attorney who
6 appears at a bail hearing, this is a stock element of any story about drug dealing. 24 And
7 a typical consequence of a drug arrest is the denial of bail.
8 Fourth, in Tribulation, a white woman named Christy cooperates with the police
9 and turns in Black for the triple murder in order to help her incarcerated boyfriend get
10 out of prison early. Black is not a part of Princes inner circle at the time that Christy
11 turns him in, and the police are not investigating a drug ring; they are investigating a
12 triple murder. In Power, Holly is the girlfriend of Ghosts business partner, Tommy.25
13 The FBI brings her in for questioning in the hopes that she will give them information
14 about Ghost which the FBI believes will lead them to cartel drug supplier, Felipe
15 Lobos. In order to protect herself from being prosecuted for other unrelated crimes,
16 and to protect Tommy, Holly gives the FBI a gun used in a murder allegedly committed
17 by Ghost. The motives of Christy and Holly in the respective works are completely
18 dissimilar. See Newt, 2016 WL 4059691, at *6, n. 10 (plots are not substantially
19 similar simply because the works involve questioning by police for different reasons).
20 Finally, Plaintiffs argue that both works contain gratuitous profanity and
21 violence. (FAC 32.) The use of strong language is a staple of any show about drugs
22 and violence. And, given that both works involve the drug trade, violence is an element
23 that flows naturally from this basic premise.
24 In any event, the Ninth Circuit has repeatedly dismissed copyright claims where
25 there was far greater overlap in plot elements than what Plaintiffs have alleged. See
26 24
Moreover, it is not until the season finale of the third season that Ghost is
arrested for the murder of an FBI agent and is thereafter denied bail.
27 25
Contrary to Plaintiffs allegations, Ghosts inner circle is not made up of
28 primarily African-Americans. In fact, Tommy is white and the next most senior
lieutenant in his drug ring is a Cuban-American man named Julio.
17
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1 e.g., Funky Films, 462 F.3d at 1081 (no protection for similar plots involving the
2 family-run funeral home, the fathers death, and the return of the prodigal son, who
3 assists his brother in maintaining the family business); Kouf, 16 F.3d 1042 at 1044-45
4 (no protection for similar plots involving shrunken kids and the life struggle of kids
5 fighting insurmountable dangers); Berkic, 761 F.2d at 1293 (no protection for similar
6 plots involving criminal organizations that murder healthy young people, then remove
7 and sell their vital organs to wealthy people in need of organ transplants or
8 adventures of a young professional who courageously investigates and finally exposes,
9 the criminal organization); Newt, 2016 WL 4059691, at *3 (finding no substantial
10 similarity even though the parties works each follow an African American man who
11 was involved in drug dealing and has sons pursuing a music career).
12 2. The Characters in Power and Tribulation Are Not Similar.
13 Generalized character types are not protected by copyright law. Rice, 330 F.3d
14 at 1175; Kouf, 16 F.3d at 1046. Only those characters that are especially distinctive,
15 such as Mickey Mouse or Superman, receive copyright protection. Olson, 855 F.2d at
16 1452. Further, characters which naturally flow from a basic plot idea are scenes-a-
17 faire. Campbell, 718 F. Supp. 2d at 1115; see also Cavalier, 297 F.3d at 825 (a
18 moon character can be considered a stock character for childrens literature, and
19 directly flows from the idea of a journey in the night sky); Newt, 2016 WL 4059691,
20 at *5 (concept of characters with a troubled past is not protectable.)
21 Courts generally require a very high degree of similarity between characters in
22 order for them to be copyrightable. Shaw v. Lindheim, 919 F.2d 1353, 1358 (9th Cir.
23 1990) (no substantial similarity between characters with the same name who were both
24 well educated, wealthy, had expensive tastes, and fought against injustice); Benay, 607
25 F.3d at 626-27 (no substantial similarity between characters who differed in their
26 marital status, job, dreams/nightmares, and ideology).26
27
26
See also Shame on You Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123,
28 1165 (C.D. Cal. 2015) affd sub nom. Shame on You Prods., Inc. v. Banks, No. 15-
56372, 2017 WL 1732279 (9th Cir. May 3, 2017) (quoting Alexander v. Murdoch, No.
18
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1 a. The Protagonists
2 The protagonists in Tribulation and Power bear no similarities aside from the
3 fact that they are both African-American and at one point were drug dealers. Gable, 727
4 F. Supp. 2d at 846 (finding no substantial similarity in two characters because [a]part
5 from being African-American and perhaps the same age, the characters had no other
6 similarities). Prince is a felon who retired from the drug business soon after his release
7 from prison; Ghost has no criminal history.27 In fact, no one outside of Ghosts crew
8 even knows he exists (which is why he is called Ghost). Even if the protagonists in
9 both works could be considered smart, this is a generic, unprotectable trait. In any
10 event, it is obvious that a successful drug dealer would have to possess street smarts
11 and business acumen to avoid detection and/or prosecution. Shaw, 919 F.2d at 1358.28
12 Also, even though both protagonists invest in legitimate businesses, Prince invests in a
13 restaurant, while Ghost conceived of, built and owns his exclusive Manhattan
14 nightclub. 29 Moreover, Prince has a girlfriend and one child, while Ghost is married
15 with three children.30
16 Lastly, Prince and Ghost are driven by two completely different goals Prince
17 wants to protect his family from being killed and avoid going to jail for a crime he did
18
19
20 CV 105613 PAC JCF, 2011 WL 2802899, *10 (S.D.N.Y. May 27, 2011)) ([A]
stunningly beautiful, fiery, temperamental, Latina mother, with a thick accent is a
21 stock character).
27
Ghost does not go to jail until the fourth season (which just recently aired) when
22 he is wrongfully charged with the murder of an FBI agent. Prior to that, he had never
been arrested.
23 28
Plaintiffs also note that both protagonists have a 360 degree waves hairstyle
24 and goatee facial hair; however, only those characters that are especially distinctive
receive copyright protection. Olson, 855 F.2d at 1452. This hairstyle and description of
25 facial hair is generic, common and unprotectable. Further, although Johnson claims his
pen name is Ghost, there is no similarly named character in Tribulation. See, e.g.,
26 Shaw, 919 F.2d at 1358.
29
Nowhere in Tribulation is there any discussion of anyone owning a nightclub.
27 30
Again, Prince is not the actual protagonist in Tribulation which is made clear by
28 the fact that he is not mentioned in the back cover summaries of either novel. See Hill
Decl., Exs. B & C.
19
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1 not commit, while Ghosts primary goal is getting out of the drug business.31
2 Ultimately, none of these purported commonalities makes the two protagonist
3 characters protectable or substantially similar.
4 b. Secondary Characters
5 Plaintiffs allege that Tribulation and Power feature an associate of the
6 protagonist who was a former college basketball star who suffered a career ending
7 injury (Randy in Tribulation and Shawn in Power). (FAC 45.) There is no one
8 named Randy or anyone matching Plaintiffs description of Randy in Tribulation.
9 In Power, Shawn is Ghosts driver and mentee. He is a former college basketball
10 player and the son of Ghosts former partner, Kanan.
11 Plaintiffs also claim that both works include a character named Angela or
12 Angie. In Tribulation, Angie is an African-American woman who works as a
13 bootlegger and is the current love interest of LA, not the purported protagonist, Prince.
14 In Power, Angela is Latina and a federal prosecutor who is also Ghosts former high
15 school flame. Aside from the fact that both women are described as beautiful and share
16 similar sounding names, these characters share no other similarity in either personality
17 or story lines. See Shaw, 919 F.2d at 1358 (no substantial similarity between
18 characters with the same name); Benay, 607 F.3d at 626-27 (no substantial similarity
19 between characters who differed, among other things, in their marital status, job, and
20 ideology).
21 Lastly, Plaintiffs allege that [i]n both works, the protagonist has a love interest
22 [and] a side-kick. (FAC 32.) Plaintiffs do not specify the names of the characters
23 who match this description in each of the respective works. Nonetheless, Princes
24 girlfriend, Wanda, does not share any similarities with either of Ghosts love interests,
25 Tasha or Angela. Further, the only character who could possibly be considered Ghosts
26 side-kick is Tommy, his white business partner, and there is no comparable character
27
31
28 Plaintiffs claim that both protagonists have parents who are deceased, and while
Ghosts father is deceased, Power does not reveal whether Ghosts mother is still alive.
20
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1 present in Tribulation.32 Ultimately, the fact that the protagonist in a story has both a
2 side-kick and a love interest is utterly generic and unprotectable.
3 3. The Settings of the Two Works Are Completely Different.
4 Generic settings are disregarded for purposes of evaluating substantial similarity.
5 Shame on You, 120 F. Supp. 3d at 1159 (The mere fact that some portion of both
6 works occurs in a city is generic and inconsequential); Newt, 2016 WL 4059691, at
7 *8 (Even though both works took place in a large urban center, that was
8 inconsequential). Here, there is absolutely no similarity in the settings of the two
9 works aside from the fact that they both take place in United States. Tribulation is set
10 almost exclusively in an inner city neighborhood in Richmond, Virginia while Power is
11 set in various upscale neighborhoods in Manhattan.33
12 4. The Two Works Share No Similar Dialogue.
13 In order to support a claim of substantial similarity, there must be extended
14 similarity of dialogue. Olson, 855 F.2d at 1450 (emphasis added); Newt, 2016 WL
34
15 4059691, at *7. Plaintiffs identify only one scene in Power with dialogue that is
16 purportedly similar to Tribulation. (FAC 39.)35 The only similarity between these
17 32
Further, there is no counterpart in Power to Jeffrey (the true protagonist in
18 Tribulation). Benay, 607 F.3d at 627 (finding no substantial similarity in part because
[t]here are a number of important characters in [plaintiffs work] who have no obvious
19 parallel in the [defendants work].); Gable, 727 F. Supp. 2d at 846 (noting that there
[were] several critical characters in [plaintiffs work] that have no counterpart in
20 [defendants work]).
33
Plaintiffs claim that Tribulation is set in Atlanta, Georgia, but the majority of the
21 storylines take place in Virginia.
34
22 Ordinary words and phrases are not entitled to copyright protection, nor are
phrases or expressions conveying an idea typically expressed in a limited number of
23 stereotyped fashions. Gable, 727 F. Supp. 2d at 847. Plaintiffs claim that the phrase
steppin it up is used in Tribulation as well as in Power is without merit because such
24 a colloquial phrase is unprotectable. Additionally, Plaintiffs incorrectly allege that the
title of a chapter in Tribulation is steppin it up; however, none of the chapters have
25 titles (aside from a chapter number) in either of the two novels comprising Tribulation.
See Hill Decl., Exs. B & C.
26 35 In Tribulations, the drug supplier says the following:
27 Before we start off doing business, I want to let you know that I've been hearing a lot
of negative shit about you. I've already heard about the influence you and your crew
28 have in the city. Imagine if you could supply the whole city with dope and coke. The
only way we can do business papa is if you can guarantee the murders will cease.
21
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1 scenes is that the drug supplier tells the drug dealer that he is familiar with the dealers
2 reputation, and how much the dealers business could grow if he could contain the
3 violence associated with his business. There is not a single phrase in the entire quoted
4 selections that is used in both Tribulation and Power. Rice, 330 F.3d at 1176
5 ([G]eneric parallels in overall tone do not rise to the level of substantial similarity.).
6 And even if the dialogue in the two scenes were identical, it would still be insufficient
7 to establish the required extended similarity of dialogue.
8 5. The Theme, Mood, Pace and Sequence of Events Are Dissimilar.
9 Plaintiffs fail to identify any alleged similarities in theme, mood, pace or
10 sequence of events. This is because no such similarities exist. As specifically
11 described by Plaintiffs on the back cover of each novel, Tribulation centers on themes
12 of inner city violence and revenge. In Book 1 of Tribulation, Johnson describes the
13 theme as follows: It would be hard to imagine that in the United States of America,
14 the greatest nation on the face of the earth, a young male growing up in the hood has a
15 greater chance of survival in the midst of war zone, rather than, within the confines of
16 the inner city ghettos. (Hill Decl., Ex. B). In Book 2, Johnson adds: Bernard
17 Gathers, the older brother to the deceased is not about to let his brothers die in vain and
18 embarks on a merciless joy ride. (Hill Decl., Ex. C) In contrast, the underlying
19 message in Power focuses on one mans internal struggles in deciding whether or not to
20 continue with a life of crime. Further, there are no similar scenes or sequence of events
21 present in both works.
22 Ultimately, when one considers the actual expression of the respective works in
23 terms of plot, characters, settings, themes, moods, pace and sequence of events, instead
24 of the random list of abstract similarities identified by Plaintiffs, only one conclusion
25
In a scene from Power, the drug supplier purportedly says the following:
26
You know I checked you out. Your reputation precedes you. Your name is feared on
27 the streets. If you could get this situation under control. Murders/war, you could have
your own cartel one day. When I hired you 6 months ago, you guaranteed me a certain
28 level of professionalism. You also guaranteed me a safe and secure pipe line with no
interruptions.
22
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1 can be reached: Tribulation is not substantially similar to the television series, Power.
2 Because Plaintiffs do not allege any taking of protectable expression, they cannot
3 sustain a copyright claim and the motion for judgment on the pleadings should be
4 granted.
5 IV. PLAINTIFFS CLAIMS FOR FRAUD AND BREACH OF CONTRACT
6 ALSO FAIL.
7 A. Plaintiffs Fraud Claim Fails To Allege Sufficient Facts.
8 Allegations of fraud must be pleaded with particularity and must also plead
9 plausible allegations. Cafasso, 637 F.3d at 1055. Plaintiffs conclusory and
10 speculative allegations are entitled to no deference. Plaintiffs do not and cannot allege
11 that any of the Moving Defendants made any representation, much less a false
12 representation, to Plaintiffs. Also, Plaintiffs have made no specific, plausible
13 allegations of reliance. Finally, the fraud claim also fails for the same reasons the
14 copyright infringement claim fails. Heusey v. Emmerich, 14-cv-06810-AB (Ex), *15
15 (C.D. Cal. Apr. 9, 2015) (Dkt. No. 30) (granting motion to dismiss and holding that
16 [p]laintiffs fraud claim rises and falls with his claim for copyright infringement
17 because the only damages Plaintiff alleges are those attributed to Defendants alleged
18 copyright infringement. Because Plaintiff fails to state a claim for copyright
19 infringement, Plaintiff cannot establish the resulting damage element of fraud.) In
20 other words, if there is no infringement of Plaintiffs works, the Moving Defendants
21 could not have made any false statements regarding the creation of Power. Corbett v.
22 Otts, 205 Cal. App. 2d 78, 84 (1962) (a fraud claim will fail if the plaintiff fail[s] to
23 prove that the . . . representations were false.).36
24 B. Plaintiffs Breach of Contract Claim Also Fails.
25 Plaintiffs allege that Turner, as an agent or employee of Jackson, entered into an
26 agency agreement with Johnson promising to assist him in exploiting [Tribulation].
27
36
28 Plaintiffs also fail to sufficiently allege that they relied on any statements made
to them by the Moving Defendants.
23
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1 But instead of doing that, Turner and Jackson allegedly misappropriated and exploited
2 Plaintiffs works as their own. (FAC 75-76.)
3 There is no written agreement alleged between Jackson and Turner or between
4 Jackson and Plaintiff Johnson.37 The purported agreement alleged in the FAC is (i)
5 unexecuted, (ii) between Nikki Turner Enterprises, LLC and Johnson and (iii) makes no
6 reference to Jackson or any of his companies, including G-Unit Books where Plaintiffs
7 claim Ms. Turner was employed. Therefore, Plaintiffs allegations that Jackson entered
8 into an agreement with Johnson are contradicted by the agency agreement itself, and
9 Plaintiffs breach of contract claim fails.38
10 V. CONCLUSION
11 Plaintiffs copyright infringement claim fails because their speculative
12 allegations of access center on Johnsons communications with a third party who
13 played no role in the creation or development of Power. And even if these allegations
14 were sufficient, a comparison of Tribulation and Power reveals that the works share no
15 similarities beyond the fact that they each feature an African-American protagonist.
16 Further, all of the purported similarities identified by Plaintiffs are either irrelevant,
17 inaccurate or consist of stock elements typical of any crime drama.
18 In addition, Plaintiffs state law claims also fail as a matter of law because (i) no
19 false statement was made by any of the Moving Defendants and (ii) Jackson never
20 entered into any agreement with Plaintiffs.
21 For all of the reasons set for above, the Moving Defendants respectfully request
22 that the Court grant their motion for judgment on the pleadings, dismiss the FAC with
23 37
The agency agreement is subject to judicial notice as it is explicitly referred to in
the complaint. Lucky Leather, Inc. v. Mitsui Sumitomo Ins. Grp., No.
24 CV1209510MMMPLAX, 2013 WL 12139116, at *1 (C.D. Cal. Feb. 26, 2013) (taking
judicial notice of a contract because plaintiff repeatedly reference[d] the contract in
25 its complaint and its claims were based entirely on the contract); see also fn. 6; Hill
Decl., Ex. F.
26 38
Further, Plaintiffs claim is also preempted by the Copyright Act because the
27 underlying wrongful conduct alleged in the complaint is the infringement of Plaintiffs
works. Kabehie v. Zoland, 102 Cal. App. 4th 513, 522-23 (2002) (Congress intended
28 to preempt those breach of contract actions seeking to protect rights equivalent to the
exclusive rights protected by federal copyright law.)
24
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1 prejudice and award the Moving Defendants their attorneys fees and costs as the
2 prevailing party.
3
4 Dated: July 24, 2017 KATTEN MUCHIN ROSENMAN LLP
5
6 By: /s/ Joanna M. Hill
Joanna M. Hill
7 Attorneys for Defendants
STARZ ENTERTAINMENT, LLC, ANCHOR
8 BAY ENTERTAINMENT, LLC, CBS
TELEVISION STUDIOS, DAVID KNOLLER,
9 MARK CANTON, RANDALL EMMETT,
COURTNEY KEMP AGBOH and CURTIS
10 JACKSON
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