Thursday, August 18, 2016

Cookie crumbles: court refuses to dismiss (c) claim based on facts of plaintiff's life

Eggleston v. Daniels, No. 15-11893, 2016 WL 4363013 (E.D. Mich. Aug. 16, 2016)

Sophia Eggleston alleged that her self-characterization in her 2009 memoir The Hidden Hand was the uncredited inspiration for the character Loretha “Cookie” Lyon on the FOX television series Empire, and sued for copyright infringement (and violation of her right of publicity). The Hidden Hand recounts “many significant events” in Eggleston’s life, including “the attempted kidnapping of her youngest daughter, and coming to terms with her brother’s homosexuality, which he revealed to her while she was in prison,” as well as numerous gun threats and the murder of her two sisters.  The memoir also covers her romantic relationship with a man in the music business.

In Empire, Cookie Lyon, the imprisoned, drug-dealing ex-wife of the man in control of Empire Entertainment, gains release and demands her share of the company.  “Thus begins the struggle for control of Empire Entertainment between Lucious, Cookie, and their three sons: Andre, a married businessman with bipolar disorder, Jamal, a gay singer rejected by his homophobic father, and Hakeem, a talented but unfocused rapper.”  Eggleston alleged that there were many striking similarities between her self-depiction and Cookie Lyon’s character: they’re “both light-skinned African-American women who wear expensive clothing, lead gangs, have placed hits on men and sold drugs, have gay family members, have two family members who were murdered, have served prison sentences, and are known for their ‘vicious insults’ and propensity to slap people.” They’ve both “shielded others by stepping in front of a loaded gun, have endured the kidnapping or attempted kidnapping of one of their children, lost their lovers while in prison, and attacked their former lovers’ new lovers upon release from prison,” as well as making liberal use of “hoe” and “bitch.”  Fox, understandably, contended that these were stock features, which seems correct.

However, the court refused to dismiss the copyright infringement claim.  Copyright in facts is thin, but selection and arrangement of facts are protectable.  [But if your selection principle is “this happened to me,” that can’t be a protectable selection method, any more than alphabetical ordering is protectable even though some methods of ordering (top 10 books) may be.]  The court took back all its statements about filtering by agreeing with Eggleston that the appropriate comparison was between “copyrightable elements of her self-portrayal in The Hidden Hand” and copyrightable elements of the Cookie Lyon character.

The court agreed that the twenty-three elements Eggleston listed in her complaint “represent a protectable compilation of experiences and traits,” and constituted more than the sum of its parts.  Though at first glance, many of these elements seemed typical to “stories about those involved in drugs and violence.”  But featuring a woman “in the dominant role as drug dealer, gang leader, and perpetrator of violence. This is not the stock and trade of the average drug gangster potboiler.”  The court commented that “Defense counsel could not offer examples of other works in this narrative genre that featured female characters in the ‘drug or organized crime boss-like’ role,” and that the court found only the 2011 telenovela series La reina del Sur produced by Telemundo or the 1999 Jorge Franco novel Rosario Tijeras. 

[Not Savages, the Don Winslow book/Blake Lively vehicle with Salma Hayek in the boss role?  Animal Kingdom, the 2010 Aussie crime movie resurrected as a TNT series?  WeedsQueen Pin (this seems exactly on point)?  Megan Abbott’s QueenpinNot to mention the history, or, as Joanna Russ might say, How To Suppress Women’s Criming.  She did it, but she’s the only one!]

[Separately, this reasoning would still be wrong without these examples.  It may be unusual, but implementing the idea “the surgeon was the child’s mother!” is not unknown.  And it’s also just an idea, no matter what profession it’s applied to.  The scenes a faire that follow may gain new resonance because of the audience’s reaction to the gender-swap, but they’re still scenes a faire.  Moreover, the court’s explanation reveals the far deeper flaw: copyright is for expression, but the characteristics plaintiff alleged were copied are—according to plaintiff herself—facts, and there is no protection for facts no matter how difficult they were to produce or live through.  By saying that the similarities are between plaintiff and Cookie Lyon, rather than between a character plaintiff created and Cookie Lyon, the court reveals the fundamental error here.]

[And the court makes it worse by allowing plaintiff to carve up the work any way she wants and claiming protection only in the “character,” instead of treating the memoir as the expressive work protected by copyright.  Once you slice out the “character” (who actually only exists in conjunction with the plot, sequence of events, mood, etc.—try to imagine James Bond hosting a cooking show and see if there’s still “James Bond” there), then all other dissimilarities in the works can be ignored, even though they are crucial to any actual audience’s perception of the character.  Justin Hughes did great work warning about this, but it still happens.]

The court found that some elements [facts about Eggleston] were “also not obviously of the stock-standard variety, regardless of a character’s gender.”  For example, both Eggleston and Lyon had a gay family member.  [Okay, if you have ten people in your close family, it would appear that the odds are actually pretty good that you are closely related to a gay person.  True, previous generations would have been somewhat less likely to write about it, but so what?]  Other “unusual” commonalities between Eggleston and Lyon were that they both “experienced the kidnapping of one of their children, have had two close family members murdered, have lost their lovers while serving time in jail, and have shielded others by stepping between them and a loaded gun. Taken together, these elements are arguably original and substantially similar.”  [To put the objection another way, these elements aren’t original to Eggleston.  She didn’t, I take it, make her brother gay, kill her lover while she was in jail, or point a loaded gun at someone she cared about.  Stepping in front of the gun, while brave, is not a creative act even though the precise words she used to describe that event might be copyrightable.]

Eggleston’s copyright claim survived the motion to dismiss.  Her right of publicity claim didn’t, because she didn’t plausibly allege a pecuniary interest or any commercial value in her identity.

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