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
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
might say, How
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
[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
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
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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