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Timothy J.

Levi
2904 W. 48th Street
Los Angeles, CA 90043
Tel No.: (323) 919-0648
Email: timlevi60@gmail.com

C A L I F O R N I A:

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

TIMOTHY J. LEVI, Pro se, ) Case No.: 2:18-cv-06156-CBM-RAO


Plaintiff, ) Honorable Consuelo B. Marshall
)
v. )
) MEMORANDUM OF LAW
DANNY STRONG, an individual; )
LEE DANIELS, an individual; )
IMAGINE ENTERTAINMENT, a Limited )
Liability Company; )
LITTLE CHICKEN, INC., a Corporation; )
FOX BROADCASTING COMPANY, INC., )
a Corporation; )
HULU- FOX HOLDINGS, a Corporation; )
TV ONE LLC, a Limited Liability Company; )
Defendants. )
)
TABLE OF CONTENT

I. Legal Standard For Rule 12(b)(6) …………………………………………………………

II. THE FAC SHOULD BE GRANTED AS A MATTER OF LAW …………………………

A. plaintiff has Stated a Claim for Copyright Infringement ……………………………...

1. Empire has 15 striking similarities to plaintiff’s work ……………………………

(a) Character has 12 striking similarities……………………………………….

(i) Lucious Lyon v. Anthony “Pee Wee” Lewis …………………………

(ii) Scenes/dialogue ……………………………………………………….

III. CONCLUSION …………………………………………………………………………….


TABLE OF AUTHORITIES

Beal v. Paramount Pictures,


20 F.3d 454, 460 (11th Cir. 1994) …………………………………………………………4

Bell Atl. Corp. v. Twombly,


550 U.S. 544, 570 (2007) …………………………………………………………………1

Building Graphics, Inc. v. Lennar Corp.,


708 F.3d 573, 578-79 (4th Cir. 2013) …………………………………………………….2

Chase-Riboud v. Dreamworks, Inc.,


987 F.Supp. 1222, 1226 (C.D. cal. 1997) ………………………………………………..3

Eaton v. National Broadcasting Co.,


972 F.Supp. 1019 (1970) ………………………………………………………………..3

Feist Publication, Inc. v. Rural telephone service Co., Inc.,


499 U.S. 340, 361, 11 S.Ct., 113 L.Ed 2d 358 (1991) …………………………………..2

Litchfield v. Spielberg
736 F.2d 1352 (9th Cir 1984) …………………………………………………………….3

Moore v. Lightstorm Entertainment,


992 F.Supp. 2d 542 (4th Cir. 2014) ……………………………………………………...3

Olson v. National Broad Co., Inc.,


855 F.2d 1446, 1452 (9th Cir. 1988) …………………………………………………….4

Parklane Hosiery Co. Inc., v. Shore, 99 S. Ct.


99 S. Ct., 645 …………………………………………………………………………..8

Reed Elsevier, Inc., v. Muchnick,


559 U.S 154, 157-58 (2010) …………………………………………………………….2

Satava v. Lowry,
323 F.3d 805, 810 (9th Cir. 2003) …………………………………………………….....3

Smith v. Weinstein,
738 F.2d 419 (2d Cir. 1984)……………………………………………………………..4

Towler v. Sayles,
76 F.3d 579, 582 (4th Cir. 1996)…………………………………………………………3
United States v. Corinthian, College,
655 F.3d 984, 999 (9th Cir. 2011)………………………………………………………..2

Statutes

17 U.S. 102(a) ………………………………………………………………………………2

17 U.S. 102(b)……………………………………………………………………………….5

17 U.S. 411(a)………………………………………………………………………………4

17 U.S. 501(a)………………………………………………………………………………4
C A L I F O R N I A:

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

TIMOTHY J. LEVI, Pro se, ) Case No.: 2:18-cv-06156-CBM-RAO


Plaintiff, )
) FIRST AMENDED COMPLAINT
v. ) FOR DAMAGES AND AN
) INJUNCTION FOR:
)
DANNY STRONG, an individual; ) 1. COPYRIGHT INFRINGEMENT
LEE DANIELS, an individual; ) 2. COPYRIGHT INFRINGEMENT
IMAGINE ENTERTAINMENT, a Limited ) 3. COPYRIGHT INFRINGEMENT
Liability Company; )
LITTLE CHICKEN, INC., a Corporation; ) 4. COPYRIGHT INFRINGEMENT
FOX BROADCASTING COMPANY, INC., ) 5. COPYRIGHT INFRINGEMENT
a Corporation; )
HULU- FOX HOLDINGS, a Corporation; ) 6. COPYRIGHT INFRINGEMENT
TV ONE LLC, a Limited Liability Company; ) 7. COPYRIGHT INFRINGEMENT
Defendants. )
) DEMAND FOR A JURY TRIAL

LEGAL STANDARD FOR RULE 12(b)(6)

To survive a motion to dismiss under federal Rule of Civil procedure 12(b)(6), a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausi-

ble on its face.’’’ Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the plaintiff pleads factual contents that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleg-

ed.” Id. “[T]he tenet that a court must accept as true all of the allegations contained in a com-

plaint is applicable to legal conclusions.” Id

When deciding a Rule 12(b)(6) motion, the Court may also consider evidence on which
the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document

is central to the plaintiff’s claim; and (3) no party questions the authenticity of the document.”

United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (citation omitted).

II. THE FAC SHOULD BE GRANTED AS A MATTER OF LAW

A. Plaintiff has Stated a Claim for Copyright Infringement

The Copyright Act of 1976, as amended, provides that an owner of a copyright has

exclusive rights “to distribute copies … of the copyrighted work to the public by sale or other

transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 501(a).

To establish a claim of copyright infringement, “two elements must be proven: (1) owner-

ship of a valid copyright and (2) copying of constituent elements of the work that are original.”

Feist Publication, Inc. v. Rural telephone Service Co., Inc., 499 U.S. 340, 361, 111 S. Ct.,

113 L.Ed. 2d 358 (1991).

Copyright registration is precondition to filing a claim, “which” plaintiff ordinarily

must satisfy before filing an infringement claim.” Reed Elsevier, Inc. v. Muchnick, 559 U.S.

154, 157-58 (2010); see also 17 U.S.C. § 411(a).

When there is no evidence of literal copying, a plaintiff can raise a “presumption of

copying by showing both that [defendants] had access to [plaintiff’s] copyrighted [material]

and that the … screenplays in question are substantially similar.” Towler v. Sayles, 76 F.3d 579,

582 (4th Cir. 1996); see also Building Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 – 79

(4h Cir. 2013).

Plaintiff has alleged “striking similarities” in his complaint, which does not requires

alleging “access” in the complaint or even proving how Levi’s work was obtained by the

defendants. “If a plaintiff cannot prove access to copyrighted works, courts will still sometimes
find copyrighted infringement under the copyright Act if plaintiff can prove “striking

similarities” which is a standard that requires a showing greater than substantial similarity and

must be so similar as to preclude the possibility of independent creation.” Moore v. Lightstorm

Entertainment, 992 F.Supp. 2d 543 (2014).

Copyright law protects the expression of ideas, not the ideas themselves, 17 U.S.C.

§ 102(b). “[C]opyright protection does not extend to historical or contemporary facts, material

traceable to common sources or in the public domains, and scenes a faire.” Chase-Riboud v.

Dreamworks, Inc., 987 F.Supp. 1222, 1226 (C.D. Cal. 1997) citation omitted); see Satava v.

Lowry, 323 F.3d 805, 810 (9th Cir. 2003) (“the originality requirement mandates that objective

‘facts’ and ideas are not copyrightable.”).

“Proving substantial similarity requires a two-part analysis. First, a plaintiff must

show-typically with the aid of expert testimony that the works in question are extrinsically

similar because they contain substantially similar ideas that are subject to copyright protection.”

Towler, 776 F.3d at 583. “The ‘extrinsic’ evaluation should assess the similarity between the two

works’ objective elements, such as plot, theme, character, setting, pace, mood, and dialogue.”

Eaton, 972 F.Supp at 1026. Second, a plaintiff must satisfy the subjective or intrinsic, portion

Of the test by showing substantial similarity in how those ideas are expressed.” Towler, 76

F.3d at 583 – 84.

The Court must make an independent comparison of the works at issue in undertaking

the extrinsic test. “The Fourth Circuit, however, has held that a list comparing ‘random simi-

larities scattered throughout the works’ is ‘inherently subjective and unreliable.’” Towler, 76

F.3d at 584 (quoting Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984). “Instead [of relying

on such lists], a court must analyze [works at issue] and the record, searching for extrinsic
similarities such as those found in plot, theme, dialogue, mood, setting, pace or sequence.”

See also Beal v. Paramount Pictures, 20 F.3d 454, 460 (11th Cir. 1994).

(i) CHARACTER

Only characters that are “especially distinctive” are protected by copyright law.”

Olson v. National Broad. Co., Inc., 855 F.2d 1446, 1452 (9th Cir. 1988). “In order to find

substantial similarity of characters, courts look to details and not just general caricatures. For

example, the Eleventh Circuit held in one case that even though both protagonist were “crown

princes and sole heirs to the thrones of foreign nations who have come to America” they were

not substantially similar because other distinct character traits. Beal v. Paramount Pictures

Corporation, 20 F.3d 454 (11th Cir. 1994).

“No character infringement claim can succeed unless plaintiff’s original conception

sufficiently developed the character, and defendants have copied this development and not

merely the broader outlines.” Smith v. Weinstein, 738 F.2d 419 (2d Cir. 1984).

In the present case, it is clear that the character is well developed based on the twenty

character traits that both Anthony Lewis and Lucious Lyon possess. Not only does Anthony

Lewis and Lucious Lyon share twenty character traits, but they also share striking similarities in

the storyline as well. Both lead characters are depicted as light-skinned, African American men.

Both men play a gangster, and raise themselves in an urban city without a mother or father. Both

men became friends with two other males in their teen years, and both men own a record label.

Both men murdered four people prior to murdering one of their teen friends. The remaining

friend decided to testify against the lead character in a federal criminal trial for murder. Both

men also tested three men to ascertain certain information.


When plaintiff compares a character from another film with the same general storyline

the two shared, it faired differently. In American Gangster, played by Denzel Washington, he

depicted an African American gangster who distributed heroin, and invested the money in to

various businesses. However, the similarities in American Gangster ceased there. The similarities

in the storyline that Empire shared with the plaintiff’s work fails to exist in American Gangster.

Nor, did the fifteen similarities exist in American Gangster that existed in Empire. A

reasonable juror would come to a logical conclusion that American Gangster was the work of

‘independent creation’, and the work of Empire was not. To prove my point further, the

defendants opted not to argue their case under “ independent creation,” which would have

given their case more credibility.

(ii) Scenes/Dialogue

Plaintiff has alleged fifteen expression of ideas in the complaint, which are strikingly

similar to the expression of ideas in Unity Incorporated: The Mastermind. Nor, does the

fifteen similarities in Empire flow naturally from “scenes a faire”.

In addition to the fifteen expression of ideas, there are two similar ideas that the defen-

dants borrowed from the plaintiff’s life. When Empire debuted in January of 2015, the

episode showed Lucious Lyon’s wife, Cookie Lyon, being released from prison after serving

17 years in prison for distributing drugs. Plaintiff contends that he also served 17 years, 5

months, and 22 days in prison for drug distribution charges as well. Plaintiff contends that the

attorney who Levi gave his manuscript to is the only person who could have conveyed plaintiffs

past to the creators of Empire because they have known each other since 1981. There is also a

character in Empire who was raised by her grandmother, “Big Mama”. There is also a grand-

mother in Unity Incorporated: The Mastermind, who is named, “Big Mama.”


Plaintiff has secretly embedded a biblical story in Unity Incorporated: The Mastermind so

that if anyone copied his work he could sufficiently demonstrate that the infringed material

derived from his manuscript. The biblical story of the infamous “golden calf” at the foot of

Mt. Sinai is embedded in plaintiff’s work using the number “3” to convey the story.

In Unity Incorporated: The Mastermind, plaintiff uses “3” men in the storyline who

became friends in their teen years. The first “3” coincide with the 3rd son of Jacob, “Levi”.

Levi’s descendants became the priestly tribe of Levi, which is plaintiff’s last name.

The “3” men represent the priestly tribe of Levi.

In Unity Incorporated: The Mastermind, the lead character, Anthony Lewis, imposed a test

on“3” men to ascertain certain information. The second “3” coincide with the 3rd book,

Leviticus. The “test” Anthony Lewis imposed on the “3” men, represent the numerous “test”

god imposed on the priestly tribe of Levi in the book of Leviticus.

In Unity Incorporated: The Mastermind, the third “3” coincide with the 3 sides of a

pyramid. The pyramid represents Mt. Sinai. In the manuscript the lead character, Anthony Lewis,

structured his crime organization in the form of a pyramid. When you translate the three,

“3’s”, you have the priestly tribe of Levi, their book, Leviticus, and them on Mt. Sinai.

When the three, “3’s” are expressed in exponential form, the number is “27”. The

number “27” coincide with the first two numbers of an address in Unity Incorporated:

The Mastermind. The address in plaintiff’s book is identified as “2703 East Broad Street”.

The “3” in the address coincide with the “3” letters in the word “eye”. The word “eye”

represent the “all seeing eye”.

The address identified in the book, “2703 East Broad Street, which” is where Levi’s

paternal grandparents, Cyrus and Rosetta Levi, lived in 1960. It is also where the plaintiff moved
to after his birth on the “27th” day of January, 1960. Levi also visited the address for “27”

years until his freedom was abruptly taken. The “all seeing eye” has watched over “The house of

Levi” for 27 years. It is also the “eye” that has watched over the priestly tribe of Levi at the foot

of Mt. Sinai.

Ironically, the three, “3’s” have occurred again in Levi’s life years ago. Levi’s daughter

entered his life on the “3rd” day of April. Levi also exited his daughter’s life, twice, on the

3rd day of September. Coincidentally, it is also Levi’s mother birthday. Significant events in

Levi’s life seems to coincide with his grandparent’s former address, “The house of Levi”.

In Empire the creators also used “3” men in their storyline who became friends in their

teen years as well. Also, the lead character, Lucious Lyon, tested his “3” sons in order to

ascertain their loyalty to him, which aired in season one. Both similarities are striking with the

similarities Levi used to embed his biblical story. Not only did Empire used two of Levi’s

similarities, but Lucious Lyon, named his club, Leviticus, and Leviticus was used in

the secrete biblical story.

Lucious Lyon is an atheist based on his condemnation of everything biblical. It is

illogical for an atheist to name a possession of his after anything biblical. However, it is logical

that the significance of the club’s name has nothing to do with the character, rather than the

person who created Lucious’ character. The root word of Leviticus is “Levi”, and Leviticus is

one of the books belonging to the priestly tribe of Levi. Plaintiff last name is “Levi”. Based on

the fact that the creators of Empire named Lucious’ club, Leviticus, it is obvious they solved the

hidden biblical story. A reasonable juror could come to a logical conclusion that Lucious Lyon’s

character could have only come from plaintiff’s book, Unity Incorporated: The Mastermind,

based on everything plaintiff has presented in the Memorandum of Law.


In the defendant’s Motion to Dismiss, the defendant ask the court to dismiss the first

amended complaint with prejudice on the grounds that the two works at issue are not sub-

stantially similar in protectable expression, which is incorrect. Fifteen striking similarities

are overwhelming evidence to prove plaintiff’s case, and thus, the defendants claim is

definitely without merit. The defendant failed to ask the court to dismiss plaintiff ‘s first

amended complaint on the ground that the two main characters are not similar. Once again,

the plaintiff has overwhelming evidence that Lucious Lyon is based on Anthony “Pee Wee”

Lewis, and thus, the defendants claim are without merit.

The defendants have also alleged in their Motion to Dismiss that the plaintiff failed to allege

“substantial similarity,” which is very deceptive in nature. The defendant’s assertion implies that

the plaintiff failed to allege “substantial or striking” similarities. Plaintiff would like to reiterate

that he has alleged “striking similarities” in his complaint, which is a standard that requires a

showing greater than substantial similarity and must be so similar as to preclude the possibility

of independent creation,” then access is not required to prevail in a copyright infringement

lawsuit.

The defendants have based their Motion to Dismiss Plaintiff’s case on failure to

state a claim. The plaintiff has “stated a claim” in which relief can be granted by complying

with the court’s two-prong, and thus, this claim is also without merit.

The defendants have also failed to rebut plaintiff’s alleged assertion that they possess

chapter 10- 18 of Unity Incorporated: The Mastermind when they stated in the first lawsuit that

“Pee Wee” murdered more people than Lucious Lyon. The fact that the defendants didn’t

attempt to rebut the assertion, proves that they have read chapter 10-18 when they should not

have known that the second half of the manuscript even existed.
III. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court grants the FAC

against the defendants.

DATE: August 29, 2018

By __________________________
Timothy J. Levi, Pro se