‘Empire’ strikes back in City of Brotherly Love

U.S. judge in Philly becomes latest of several to reject claims about originality of hit TV series

Rome not only wasn’t built in a day, it also took centuries and legions of soldiers to defend its expanding glory. TV’s Empire, it turns out, is requiring its own formidable legal forces to fend off its attackers.

And Lee Daniels, the hit Fox series’ ceasar, may be singing Philadelphia Freedom after shaking off the latest assault with a federal district court in Pennsylvania dismissing a copyright infringement suit by former actor Clayton Prince Tanksley.

Tanksley lacked much brotherly affection for Empire, which he claimed copied his TV drama Cream. How did his suit, and several others, curdle, legally speaking?

Perils in a Philly pitch event

Tanksley’s suit can be traced to his 2008 attendance at Philly Pitch, a program hosted by the Greater Philadelphia Film Office. The  event gives aspiring writers and producers the chance to show off  their skills and concepts to hot industry professionals. They act as pitch judges, and they included on this spring day Daniels, an Oscar-nominated TV and film producer.

Tanksley says he pitched Kung Fu Sissy, one of his show ideas, to judge. He also claims he talked to Daniels about his nascent show Cream. Here’s where it gets complicated,  because Tanksley, as he later proved, had received a valid copyright for Cream in 2005.

His series focuses on an African-American man who overcomes a “disadvantaged past” to win riches in the music industry but who also is exploited by friends and family. Cream, which Tanksley wrote, filmed, and produced a few episodes, was captured in DVDs and scripts. Tanksley claims he gave Daniels both.

Seven years later, Daniels and Fox launched Empire, a deep dive into the tawdry life of Lucious Lyon. This African-American character, as performed by actor Terrence Howard, fights his way out of poverty and the hood, first as a drug dealer, then a rap star, and finally as a music industry pioneer, heading one of the world’s leading record labels, Empire Entertainment.

Tanksley found too much likeness in this plot to his own and he disliked it all sufficiently that a year after Empire premiered, he sued Daniels, 20th Century Fox, and a host of others for infringement. He asserted that Daniels secretly stole Cream, knowingly, willfully, and directly exploiting the protected work to create Empire. And once Empire became a hit—with 9.9 million viewers to start and more than 16 million on average now—Cream’s economic value went kaput.

But counsel for Daniels and 20th Century Fox carved Tanksley’s suit up in a year’s exchange of paperwork, in which they did not contest that he held rights to Cream. Instead, they attacked his claims of similarities between the two works, saying he lacked facts to prove any.

Similarities lacking

To decide the dispute, U.S. Judge Joel H. Slomsky compared the two works, focusing on the plot, characters, theme, mood, setting, and dialogue, as well as their “total concept” and “overall feel.”

General plot ideas cannot be protected, nor can stories in succession. Slomsky found plain differences in expression for both works. In Cream, for example, a key male characters seeks to inherit half of the record label; in Empire, Lucious must pick among his three sons as to which will be his corporate heir.

The court further scrutinized the characters. The law gives no protection to indistinct, prototypical, or stock characters who display generic traits. Slomsky found no substantial similarities in characters in the works by Daniels and Tanksley, though both feature middle-aged African-American protagonists who rise from poverty to success. This rags-to-riches tale also is not novel and cannot be protected.

And while musical interludes are a thing of beauty when used  well in TV shows or movies, these also cannot support infringement claims, Slomsky found, rejecting another Tanksley argument. The judge noted that in Cream, nameless characters perform key tunes, while central characters do so in Empire.

The judge also noted that Cream is set wholly in Philadelphia, while Empire has flashbacks in the City of Brotherly Love (with Lucious and his queen bee Cookie Lyons in their earlier days) but mostly centers on action in Manhattan.

Sacking Empire suits

With the Philadelphia suit dismissed, Empire’s on a small legal roll in shutting down claims against it:

  • Sophia Eggleston, a Motown resident with a long rap sheet including manslaughter, sued Daniels in 2015, claiming he stole the story of her troubled life to create Cookie Lyon, Empire’s sultry seductress as played by Taraji P. Henson. Eggleston’s suit, seeking $300 million, has been dismissed.
  • Daniels also has fought off author Ron Newt’s suit, seeking $10 million. Newt claimed Daniels stole the concept for Empire from his book “Bigger than Big,” which also was made into a screenplay and DVD documentary. A federal judge in Los Angeles rejected Newt’s claims.