                                          PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                          ______


                       No. 17-2023
                          ______


            CLAYTON PRINCE TANKSLEY,
                               Appellant

                             v.

   LEE DANIELS; LEE DANIELS ENTERTAINMENT;
 DANNY STRONG; DANNY STRONG PRODUCTIONS;
 TWENTY-FIRST CENTURY FOX, INC., Parent Company
  of Fox Entertainment Group, Inc., 20th Century Fox Film
Corp, 20th Century Fox Television Inc, 20th Century TV Inc.,
      20th Century Fox International, 20th Century Fox
            International Television LLC and 20th
  Century Fox Home Entertainment LLC; FOX NETWORK
     GROUP INC, Parent Company of Fox Broadcasting
           Company, Fox Television Stations, Inc.,
Fox Digital Media, Fox International Channels, Inc.; DOES 1
    THORUGH 10; SHARON PINKENSON, Executive
       Director; GREATER PHILADELPHIA FILM
            OFFICE; LEAH DANIELS-BUTLER
                          _____


      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
               (E.D. Pa. No. 2-16-cv-00081)
        District Judge: Honorable Joel H. Slomsky
                          ______


                   Argued April 9, 2018
 Before: CHAGARES, VANASKIE and FISHER, Circuit
                    Judges.


                 (Filed: August 28, 2018)


Mary E. Bogan       [ARGUED]
1650 Market Street, Suite 3600
Philadelphia, PA 19103


Predrag Filipovic   [ARGUED]
1735 Market Street
Mellon Bank Center
Philadelphia, PA 19103


      Counsel for Appellant




                              2
Richard L. Stone [ARGUED]
Andrew J. Thomas
Andrew G. Sullivan
Jenner & Block
633 West 5th Street, Suite 3600
Los Angeles, CA 90071

Michael K. Twersky
Fox Rothschild
2000 Market Street, 20th Floor
Philadelphia, PA 19103

      Counsel for Lee Daniels, Lee Daniels Entertainment,
Danny Strong, Danny Strong Productions, Twenty First
Century Fox Inc., Fox Network Group Inc. and
Leah Daniels-Butler


Rigel C. Farr, Esq.
Charles M. Golden, Esq.
Mathieu Shapiro, Esq. [ARGUED]
Obermayer Rebmann Maxwell & Hippel
1500 Market Street, Suite 3400
Philadelphia, PA 19102
      Counsel for Sharon Pinkenson and Greater
Philadelphia Film Office
                          ______


                OPINION OF THE COURT
                          ______




                             3
FISHER, Circuit Judge.


        Clayton Prince Tanksley is an actor and producer who
lives in Philadelphia. In 2005, he created a three-episode
television pilot, Cream, for which he received a copyright. In
2015, Fox Television debuted a new series, Empire, from
award-winning producer and director Lee Daniels. Shortly
thereafter, Tanksley filed suit, claiming that Empire infringed
on his copyright of Cream. The District Court found no
substantial similarity between the two shows and dismissed
Tanksley’s complaint. For the reasons stated below, we will
affirm.
                               I
                    A. Factual Background
       In 2005, Tanksley wrote, produced, directed, filmed,
starred in, and copyrighted three episodes of Cream, a show
about an African-American record executive who runs his own
hip-hop label. In 2008, Tanksley participated in an event called
the Philly Pitch hosted by the Greater Philadelphia Film Office.
The Philly Pitch provided an opportunity for aspiring local
writers to pitch movie concepts to a panel of entertainment
professionals. Lee Daniels served as a panel member.
        During his presentation to the panel, Tanksley pitched
an idea unrelated to Cream. At a meet-and-greet following the
pitches, however, Tanksley spoke with Daniels one-on-one,
and the two discussed the show. Daniels apparently expressed
interest, so Tanksley provided him with a DVD and a script of
the series. Tanksley’s complaint does not allege any further
contact between him and Daniels. In 2015, nearly seven years
later, Fox aired the debut episode of the Daniels-created series
Empire, which also revolves around an African-American




                               4
record executive who runs his own music label.
       The following are brief descriptions of each show.1
                            Cream
       Winston St. James is the founder and owner of Big Balla
Records based in Philadelphia. Cream documents the
challenges Winston faces as he attempts to run his record label
while dealing with a variety of personal and family problems.
Cream features numerous, prolonged sex scenes and portrays
Winston and other characters as highly promiscuous. The show
has several story arcs of varying prominence; the main three
are outlined below.
        Herpes: Throughout the show, Winston has a number of
sexual forays with various characters, including his two
assistants, Chantal and Tiffany. Towards the end of the first
episode, Winston grabs his groin in obvious pain and instructs
an assistant to schedule a doctor’s appointment for him
immediately. Early in the second episode, Winston learns from
his doctor that he has herpes. In this scene, the dialogue
between Winston and his doctor is conspicuously educational
for a drama, and includes many clinical details about herpes
prevention and treatment. Episode two concludes with
Tanksley (out of character) delivering a lengthy public service
announcement about sexually transmitted diseases. In the third
episode, the audience learns that Winston’s two assistants also
have herpes, and there are intra-office recriminations over the
source of the outbreak. At the end of the third episode, Winston
learns that Chantal’s husband has been visiting a prostitute who
has herpes, dramatically revealing her as the unexpected source

       1
        The District Court provided an exceptionally
thorough summation of each show, the most relevant portions
of which we have attempted to distill here.




                               5
of the outbreak at Big Balla Records.
       Domestic Abuse: Early in the first episode, Winston’s
younger sister, Angelica, is physically abused by her
boyfriend, Shekwan. He is upset over Angelica’s failure to get
him an audition with Big Balla Records. After discovering the
source of Angelica’s injuries, Winston agrees to give Shekwan
an audition, but also arranges to have him murdered. The first
episode ends with two of Winston’s associates shooting
Shekwan many times from the shadows of an alley. Following
the first episode, the actress who plays Angelica delivers a
public service announcement about domestic abuse. In the
second episode, Shekwan survives the shooting and makes a
full—miraculous, even—recovery. Winston then allows
Shekwan to make a record, but attempts to sabotage him with
a comically bad song. To Winston’s chagrin, the song ends up
being massively successful, with many suppliers calling
Winston’s office directly to order several thousand copies.
       Company Takeover: Winston’s ex-girlfriend, Brenda,
and his father, Sammy, are introduced in the final scene of the
second episode. The audience learns that Winston’s younger
brother and sister are actually his and Brenda’s children.
Winston’s parents raised the children because of Brenda’s past
drug abuse. Sammy—now apparently estranged from his ex-
wife and Winston—pledges to help Brenda get her children
back and vows to take control of Big Balla Records. Sammy
and Brenda then have sex and the episode ends. In the third
episode, Winston’s mother, Nora, gets in a fight with Brenda
and suffers a fatal heart attack. At her funeral, the audience
learns for the first time that Nora owned fifty percent of Big
Balla Records. Sammy confronts Winston and demands Nora’s
share of the company, which Winston refuses. Later, Sammy
learns that Nora gave her shares to her grandchildren, i.e.,
Winston’s children. Following another sex scene with Brenda,




                              6
Sammy schemes to drive a wedge between Winston and his
children by revealing the truth about their parentage. In this
way, Sammy hopes to gain control of Big Balla Records. After
learning that Winston is actually her father, Angelica tells him
that she never wants to see him again. The third episode ends
with the actress who plays Nora delivering a public service
message about the apparent crisis of grandparents raising their
grandchildren.
                            Empire
       Lucious Lyon is the founder and CEO of Empire
Entertainment, a prominent record label based in New York
City. Lucious rose from a life of poverty and crime in
Philadelphia to become a music and entertainment mogul. The
members of Lucious’ immediate family also play central roles
in the series. As outlined below, Empire’s first season is
defined by several story arcs.
         Succession: Unquestionably, Empire’s main storyline
concerns the question of who will succeed Lucious as head of
Empire Entertainment. In the pilot episode, Lucious is
diagnosed with ALS and told that he has only three years to
live. Lucius keeps his illness a secret, but the prognosis
prompts him to tell his three sons that he will soon choose one
of them as his successor. Lucious’ decision is complicated by
the fact that each of his sons has a unique set of talents and
liabilities. His oldest son, Andre, is a Wharton graduate and the
current CFO of Empire Entertainment. Andre, however, lacks
musical talent, and Lucious, as an acclaimed artist in his own
right, believes that Empire should be led by a musician. The
middle son, Jamal, is a talented R&B singer and songwriter,
but struggles to gain his father’s approval because he is gay.
Due to a presumed hostility to homosexuality in the African-
American community, Lucious is doubtful that Jamal could




                               7
successfully lead Empire Entertainment. Lucious’ youngest
son, Hakeem, is an emerging, charismatic rapper who
embodies the hip-hop lifestyle. Lucious initially favors
Hakeem because of his star potential, but Hakeem’s
immaturity and undisciplined behavior force Lucius to
reconsider.
       Lucious’ Past: Before becoming an entertainment
mogul, Lucious dealt drugs and committed various other
crimes, some violent. In various ways throughout the series,
Lucious’ past threatens to undermine everything he has built at
Empire. In the pilot episode, Lucious’ ex-wife, Cookie, is
released from prison after serving a seventeen-year sentence.
The audience learns that Cookie took the rap for Lucious so he
could use proceeds from a drug sale to launch his career and,
eventually, Empire Entertainment. Upon her release, Cookie,
whom Lucious divorced shortly after her incarceration began,
confronts Lucious at Empire headquarters and demands fifty
percent of the company. When Lucious resists, Cookie
threatens to inform the SEC that Empire Entertainment was
started with drug money, a particularly potent threat in light of
Empire’s upcoming IPO.
        Later in the pilot, Lucious’ longtime friend Bunkie
attempts to blackmail him by threatening to tell police about
Lucious’ past crimes. Lucious arranges to meet Bunkie by the
river at night, and shoots him in the face. The investigation into
Bunkie’s death, and Lucious’ suspected involvement, play out
over the course of the series.
                     B. Procedural History
       Tanksley filed his initial complaint in the Eastern
District of Pennsylvania, alleging copyright infringement and
several derivative claims. He then amended the complaint one
month later. Following a hearing on Defendants’ motions to




                                8
dismiss, the District Court permitted Tanksley to further amend
his complaint.
       The operative complaint asserts that Cream and Empire
are “in many respects strikingly substantially similar,” Compl.
¶ 39, and contains a detailed analysis—including dozens of
screenshots from each show—documenting the alleged
similarities. The District Court conducted four days of
hearings, during which each party presented video excerpts
from the shows to demonstrate similarity or dissimilarity.
       The court then granted Defendants’ motions to dismiss,
finding that Tanksley’s complaint fails to state a claim because
the two shows are not substantially similar as a matter of law.
Tanksley timely appealed.
                                II
       The District Court had jurisdiction under 28 U.S.C. §§
1331, 1338, and 1367. We have jurisdiction under 28 U.S.C. §
1291. “Our review of the grant of a motion to dismiss is
plenary.” Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877
F.3d 487, 489 n.5 (3d Cir. 2017).
                               III
        On appeal, Tanksley raises two primary arguments, one
procedural and one substantive. Procedurally, he argues that
the question of substantial similarity is too fact-intensive to be
resolved at the pleading stage. Substantively, Tanksley argues
that the District Court erred in finding no substantial similarity
between Cream and Empire as a matter of law.
        A. Copyright Infringement and Rule 12(b)(6)
      In order to prove copyright infringement, a plaintiff
must establish that his copyrighted work and the infringing
work are “substantially similar.” Dam Things from Den. v.
Russ Berrie & Co., 290 F.3d 548, 561–62 (3d Cir. 2002). This




                                9
term’s meaning will be discussed more fully below. For
present purposes, it is enough to observe that substantial
similarity “is usually an extremely close question of fact,”
which is why even “summary judgment has traditionally been
disfavored in copyright litigation.” Twentieth Century–Fox
Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 n.6 (9th Cir.
1983). Nevertheless, if “no reasonable jury” could find that two
works are substantially similar, then “summary judgment for a
copyright defendant” has been considered “appropriate.”
Sturdza v. United Arab Emirates, 281 F.3d 1287, 1296–97
(D.C. Cir. 2002). And in recent years, several Courts of
Appeals have taken the next step by affirming dismissals under
Federal Rule of Civil Procedure 12(b)(6) after finding no
substantial similarity as a matter of law. See 3 William F. Patry,
Patry on Copyright § 9:86.50 (Mar. 2018 update) (citing
published opinions from the Second, Seventh, Eighth, Ninth,
and Tenth Circuits). Such dismissals, which were formerly rare
(but not unprecedented, e.g., Christianson v. W. Pub. Co., 149
F.2d 202, 203 (9th Cir. 1945)), are now more common.2
       In justifying dismissals of copyright infringement
claims, courts follow a now-familiar logical progression. First,
in evaluating a motion to dismiss, courts are not limited to the
four corners of the complaint, but may also consider evidence
“integral to or explicitly relied upon” therein. In re Rockefeller
Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999)
(emphasis omitted) (quoting In re Burlington Coat Factory

       2
        Panels of our Court have affirmed dismissals of
copyright infringement claims in two nonprecedential
opinions. Tanikumi v. Walt Disney Co., 616 F. App’x 515 (3d
Cir. 2015) (per curiam) (nonprecedential); Winstead v.
Jackson, 509 F. App’x 139 (3d Cir. 2013) (per curiam)
(nonprecedential).




                               10
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). The
copyrighted and allegedly infringing works will necessarily be
integral to an infringement complaint and are therefore
properly considered under Rule 12(b)(6). Next, courts have
justified consideration of substantial similarity at the pleading
stage by noting that “no discovery or fact-finding is typically
necessary, because ‘what is required is only a visual
comparison of the works.’” Peter F. Gaito Architecture, LLC
v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (quoting
Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir.
1991)). Finally, having limited the focus to the works
themselves, courts will dismiss an infringement action if they
conclude that “no trier of fact could rationally determine the
two [works] to be substantially similar.” 3 Melville B. Nimmer
& David Nimmer, Nimmer on Copyright § 12.10[B][3] (rev.
ed. 2018).
       The District Court followed this precise line of
reasoning in dismissing Tanksley’s complaint. First, it properly
considered the copyrighted and allegedly infringing works in
their entireties. The complaint does not have recordings of
either show formally attached as an exhibit, but it includes
dozens of side-by-side screenshots of each, so both shows are
unquestionably integral to the complaint. Second, the District
Court properly concluded that no additional evidence or expert
analysis would be relevant to the question of substantial
similarity. On appeal, Tanksley criticizes the court for
rendering its decision “without the benefit of witness
testimony, documentary evidence, or expert analysis,”
Appellant’s Br. 14, but fails to explain how any such evidence
could have been relevant. It would not have been. On
substantial similarity, the question is how the works “would
appear to a layman viewing [them] side by side,” Universal
Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3d Cir. 1975),




                               11
and we have rejected the usefulness of experts in answering
this question, id. at 907.3
       In ratifying the District Court’s approach, we do not
mean to minimize the central role of the jury in cases where
substantial similarity might reasonably be found. But where no
reasonable juror could find substantial similarity, justice is best
served by putting “a swift end to meritless litigation.” Hoehling
v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.
1980) (quoting Quinn v. Syracuse Model Neighborhood Corp.,
613 F.2d 438, 445 (2d Cir. 1980)). We conclude that the
District Court properly considered the question of substantial
similarity under Rule 12(b)(6). We next evaluate whether it
arrived at the correct answer.
                    B. Substantial Similarity
                   1. Background Principles
        To establish a claim of copyright infringement, a
plaintiff must show: “(1) ownership of a valid copyright; and
(2) unauthorized copying of original elements of the plaintiff’s
work.” Dun & Bradstreet Software Servs., Inc. v. Grace
Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002). This second
element—unauthorized copying—itself comprises two
(frequently conflated) components: actual copying and
material appropriation of the copyrighted work. Castle Rock
Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 137 (2d

       3
          We have expressed more openness to expert
testimony when the works at issue are highly technical in
nature, e.g., computer programs. Whelan Assocs. v. Jaslow
Dental Lab., Inc., 797 F.2d 1222, 1232–33 (3d Cir. 1986).
But television shows, like “novels, plays, and paintings,” are
precisely the kinds of works for which the ordinary observer
test is best suited. Id. at 1232.




                                12
Cir. 1998); 3 Patry, supra, § 9:91. The conceptual distinction
between actual copying and material appropriation is
foundational to copyright law because not all instances of
actual copying give rise to liability, and, conversely, without
proof of actual copying the amount of similarity between two
works is immaterial. Because we conclude that Tanksley has
failed to plausibly allege material appropriation, we do not
address the separate question of whether the complaint
plausibly alleges actual copying. Nevertheless, a clear
understanding of both components is essential to our analysis.
                        a. Actual Copying
        Actual copying focuses on whether the defendant did,
in fact, use the copyrighted work in creating his own. If the
defendant truly created his work independently, then no
infringement has occurred, irrespective of similarity. Yurman
Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001); see
Fred Fisher, Inc. v. Dillingham, 298 F. 145, 151 (S.D.N.Y.
1924) (L. Hand, J.) (using the example of two mapmakers and
noting that “if each be faithful, identity is inevitable,” but,
“[e]ach being the result of original work, the second will be
protected, quite regardless of its lack of novelty”). On the other
hand, it is no defense that a defendant copied a protected
work—such as a song—subconsciously. Three Boys Music
Corp. v. Bolton, 212 F.3d 477, 482–84 (9th Cir. 2000)
(upholding      plaintiff’s   “twenty-five-years-after-the-fact-
subconscious copying claim”).
        In the great majority of cases, a plaintiff will lack direct
evidence of copying, which may instead be shown through
circumstantial evidence of access and similarity. 3 Paul
Goldstein, Goldstein on Copyright § 9:6.1 (Supp. 2008). There
is a critical, though often misunderstood, distinction between
“substantial similarity” with respect to copying and




                                13
“substantial similarity” with respect to material appropriation.
Two works can be “substantially similar” so as to support an
inference of copying, yet not “substantially similar” in the
sense that the later work materially appropriates the
copyrighted work. Salkeld, 511 F.2d at 907. To clearly mark
this distinction, we prefer the term “probative similarity” in the
copying context, while reserving “substantial similarity” for
the question of material appropriation. See Dam Things from
Den., 290 F.3d at 562 & nn.19–20. This distinction has critical
analytical consequences for what evidence may be considered
at each step of the infringement analysis. On the question of
copying, the finder of fact may consider any aspect of the
works that supports an inference of copying, even elements
that are incapable of copyright protection. See Laureyssens v.
Idea Grp., Inc., 964 F.2d 131, 139–40 (2d Cir. 1992); 3 Patry,
supra, § 9:19. By contrast, when assessing material
appropriation, i.e., substantial similarity, only similarities in
protectable expression may be considered. Laureyssens, 964
F.2d at 139–40. Titles, for example, are quintessentially
unprotectable by copyright, but the fact that two works share
the same title may be considered as evidence that the later work
was copied from the earlier. Shaw v. Lindheim, 919 F.2d 1353,
1362 (9th Cir. 1990).
                  b. Unlawful Appropriation
       Actual copying alone is insufficient to support an
infringement claim because a copyright only protects the
holder’s particular creative expression, not his ideas. At a
certain level, copying is perfectly permissible, even expected.
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d
Cir. 1936) (L. Hand, J.) (“[T]he defendants were entitled to
use, not only all that had gone before, but even the plaintiffs’
contribution itself, if they drew from it only the more general
patterns; that is, if they kept clear of its ‘expression.’”). If




                               14
copying is proven (or conceded), the defendant is only liable
for infringement if his work is substantially similar to the
protected elements of the copyrighted work.
       In its basic formulation, substantial similarity asks
whether “a ‘lay-observer’ would believe that the copying was
of protectible aspects of the copyrighted work.” Dam Things
from Den., 290 F.3d at 562, or—again quoting Judge Hand—
whether “the ordinary observer, unless he set out to detect the
disparities [in the two works], would be disposed to overlook
them, and regard their aesthetic appeal as the same,” Peter Pan
Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir. 1960), quoted in Dam Things from Den., 290 F.3d at 562.
To answer this question, the trier of fact performs a side-by-
side comparison of the works and, excluding any unprotectable
elements, assesses whether the two works are substantially
similar. Dam Things from Den., 290 F.3d at 566.
       The difficulty of this analysis derives from the
impossibility of drawing an exact line between what
constitutes an idea—which is not protected—and an
expression—which is. This challenge is particularly acute in
the case of dramatic works. As Judge Hand described:
      Upon any work, and especially upon a play, a
      great number of patterns of increasing generality
      will fit equally well, as more and more of the
      incident is left out. The last may perhaps be no
      more than the most general statement of what the
      play is about, and at times might consist only of
      its title; but there is a point in this series of
      abstractions where they are no longer protected,
      since otherwise the playwright could prevent the
      use of his “ideas,” to which, apart from their
      expression, his property is never extended.




                              15
       Nobody has ever been able to fix that boundary,
       and nobody ever can.
 Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.
1930) (citation omitted). Tanksley’s complaint exemplifies
these difficulties. His copyright undoubtedly protected more
than the literal expression in Cream, but it is difficult to draw
a principled line to determine at what level of abstraction the
expression in Cream loses its protection and becomes a mere
idea. Is the premise of a television show based on an African-
American record executive expression or idea? What about a
record executive dealing with family strife? Or dealing with
family strife and his relatives’ efforts to gain control of his
company?
        Adding to the difficulty is the need to maintain focus on
the protected elements of Tanksley’s work, not the prominence
of any such elements in the defendant’s work. Even if what was
taken from Cream forms but a minor element in Empire,
infringement has occurred so long as what was taken was a
material part of Tanksley’s work. Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 564–65 (1985) (“A taking
may not be excused merely because it is insubstantial with
respect to the infringing work.”).
       Seeking to impose a semblance of order on this “at
large” analysis, courts have developed several methods and
principles for evaluating substantial similarity. In works that
involve a mix of protected and unprotected elements, as is the
case here, the first step is to identify and exclude from the
substantial similarity analysis any unprotected material. In
dramatic works, an important category of unprotected content
is scènes à faire, or plot elements that flow predictably from a
general idea. In a film about a college fraternity, for example,
“parties, alcohol, co-eds, and wild behavior” would all be




                               16
considered scènes à faire and not valid determinants of
substantial similarity. Stromback v. New Line Cinema, 384
F.3d 283, 296 (6th Cir. 2004).
        After excising all unprotectable ideas and scènes à faire,
courts have sought to compare dramatic works across a number
of components: plot and sequence of events, dialogue,
characters, theme, mood, setting, and pace. See Robert C.
Osterberg & Eric C. Osterberg, Substantial Similarity in
Copyright Law, § 4:2–8 (2011). At the same time, however,
substantial similarity can be grounded in a work’s “total
concept and feel,” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d
996, 1003 (2d Cir. 1995), and courts are admonished not to lose
sight of material similarities by “balkanizing a unified
copyrighted work into constituent elements, which are then
compared in isolation,” 3 Patry, supra, § 9:73. The total
concept and feel approach recognizes that “a work may be
copyrightable even though it is entirely a compilation of
unprotectable elements,” because “[w]hat is protectable . . . is
‘the author’s original contributions’—the original way in
which the author has ‘selected, coordinated, and arranged’ the
elements of his or her work.” Knitwaves, 71 F.3d at 1003–04
(citation omitted) (quoting Feist Publications, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 350, 358 (1991)). There is
obvious tension between the imperative to filter out
unprotectable elements of a work while keeping sight of the
work’s total concept and feel (which necessarily includes
unprotectable elements). We reconcile these competing
considerations by recalling that the basic inquiry remains
whether an ordinary observer would perceive that the
defendant has copied protected elements of the plaintiff’s
work. Other filters, e.g., scènes à faire, total concept and feel,
etc., while helpful, are merely tools to assist the trier of fact in
reaching a proper conclusion.




                                17
             2. Application to Cream and Empire
       With these principles in mind, we conclude that,
superficial similarities notwithstanding, Cream and Empire are
not substantially similar as a matter of law. This conclusion
flows unavoidably from a comparison of the two shows’
characters, settings, and storylines.
        As a preliminary matter, we note that the shared premise
of the shows—an African-American, male record executive—
is unprotectable. These characters fit squarely within the class
of “prototypes” to which copyright protection has never
extended. Nichols, 45 F.2d at 122; see Rice v. Fox Broad. Co.,
330 F.3d 1170, 1175 (9th Cir. 2003) (observing that only
characters with “consistent, widely identifiable traits,” e.g.,
Godzilla, James Bond, and Rocky Balboa, have received
copyright protection). The scope of Cream’s protection,
therefore, extends only to Tanksley’s particular expression of
this unprotectable idea.
                a. Main Characters and Setting
       In Cream, Winston St. James runs Big Balla Records,
and while he is clearly the man in charge, the label itself is not
presented as being particularly glamorous or high profile.
Winston appears to run the label largely by himself, his office
is small and dated, and aspiring talent audition in what appears
to be a dilapidated dance studio that Winston does not even
appear to own. In Empire, Lucious Lyon’s company, Empire
Entertainment, is portrayed as a massive corporate
conglomerate, with stakes in music, clothing, and
entertainment. Lucious’ life is portrayed as the epitome of
luxury: lavish offices and homes, state-of-the-art studios, and
yacht parties.
       Lucious is a celebrated artist in his own right, and is
portrayed as having an innate ability to recognize talent and get




                               18
the best out of his performers. Winston, by contrast, does not
appear to be a musician of any sort. And while artists in Cream
crave the opportunity to join his label, Winston is not depicted
as having any notable artistic or promotional ability. As for the
characters’ backgrounds, Cream reveals little about Winston
aside from the fact that he fathered two children with a drug-
addicted woman, with these children being raised under the
impression that Winston is their older brother. In contrast,
Lucious’ background—vividly depicted in flashbacks—forms
a central dramatic element in Empire. Lucious came up as a
drug dealer and used proceeds from drug sales to fund his
initial recording venture. Empire also reveals that Lucious
committed multiple drug-related murders in the past. The
possibility that this information will come to light, and the risk
it poses to Lucious’ fortune and freedom, are central dramatic
elements in Empire. As these descriptions indicate, even if we
assume that Winston and Lucious stem from the same
unprotectable idea, the particular expressions of this idea are
not substantially similar.
                       b. Main Storylines
        With regard to plot, the similarities between the shows
likewise extend no farther than the bare abstraction of an
African-American, male record executive. Cream’s plot
largely, though not exclusively, revolves around Winston’s
herpes diagnosis. In the first episode, Winston experiences
groin pain of unknown origin. In the second episode, he is
officially diagnosed with herpes, and it is suggested that one of
his paramours has herpes as well. The second episode also
concludes with a public service announcement about herpes
and other sexually transmitted diseases. In the third episode,
multiple additional characters learn that they have herpes, and
Winston learns that the husband of one of his inamoratas was
the original source of the outbreak. This last piece of




                               19
information is revealed in Cream’s final scene and serves as
the show’s dénouement. While Cream includes several other
storylines, the herpes element is the only one woven into all
three of its episodes.
        The Empire plot focuses most concertedly on the
question of which Lyon son will be chosen to succeed Lucious
as the head of Empire Records. The sons each have a distinct
personality and a unique blend of artistic and business savvy,
which fuels the dramatic tension over whom Lucious will
select. This succession storyline, which dominates Empire, has
no analog in Cream. Empire also prominently features
Lucious’ ex-wife, recently released from prison, who is
seeking to gain control of fifty percent of the company and
becomes embroiled in the conflict over Lucious’ corporate
heir.4
       Tanksley seeks to offset these broad similarities by
highlighting particular snippets common to each show. To take
a representative example, Tanksley argues that substantial
similarity can be found in the fact that Lucious and Winston
are both diagnosed with a disease in the course of their

      4
         It is true that Cream contains a secondary storyline
wherein Winston’s father attempts to wrest control of the
company from him. However, in the context of a show about a
company, the fact that a storyline would involve who controls
that company is neither surprising nor protectable. Cf. Walker
v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986)
(identifying foot chases and morale problems as scènes à faire
in police dramas). In addition, the expression of this idea in
each show is starkly different. Lucious’ ex-wife, Cookie,
helped him found Empire and has a legitimate claim to her
sought-after share of the company. Winston’s father is
motivated by pure greed.




                             20
respective series. The ultimate significance of this comparison
is equally representative: any facial plausibility fades upon
examination. In Empire, Lucious’ diagnosis of ALS—which is
fatal—creates the urgency to choose his successor, the focal
point of the entire series. In Cream, Winston’s diagnosis of
herpes—which is painful—merely serves to interfere with his
romantic liaisons and introduces the venereal whodunit that
follows. “[R]andom similarities” are insufficient to establish
substantial similarity. Williams v. Crichton, 84 F.3d 581, 590
(2d Cir. 1996) (quoting Litchfield v. Spielberg, 736 F.2d 1352,
1356 (9th Cir. 1984)). After all, both Mozart and Metallica
composed in E minor. The question is whether, in view of such
similarities, “a ‘lay-observer’ would believe that the copying
was of protectible aspects of the copyrighted work.” Dam
Things from Den., 290 F.3d at 562.
       In considering the protectable elements of Cream, we
are convinced that “no reasonable jury, properly instructed,
could find that the two works are substantially similar.” Gaito,
602 F.3d at 63 (quoting Warner Bros. Inc. v. Am. Broad. Cos.,
720 F.2d 231, 240 (2d Cir. 1983)). As the District Court
concluded, even when “viewing the comparisons in the light
most favorable to [Tanksley], . . . Cream and Empire contain
dramatically different expressions of plot, characters, theme,
mood, setting, dialogue, total concept, and overall feel.”
Tanksley v. Daniels, 259 F. Supp. 3d 271, 294 (E.D. Pa. 2017).
Without substantial similarity, Tanksley’s complaint fails to
state a claim of copyright infringement and was properly
dismissed under Rule 12(b)(6).
                     C. Derivative Claims
       We will also affirm the District Court’s dismissal of
Tanksley’s assorted derivative claims. His claims of
contributory copyright infringement are foreclosed by our




                              21
conclusion that he has not plausibly alleged direct
infringement. See Leonard v. Stemtech Int’l Inc., 834 F.3d 376,
387 (3d Cir. 2017), cert. denied 138 S. Ct. 975 (2018).
Tanksley’s misrepresentation claims against Daniels and his
negligence claim against the Greater Philadelphia Film Office,
having not been raised in his opening brief, are waived. Halle
v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 230 n.17
(3d Cir. 2016). His other negligence claims, being virtually
indistinguishable from the infringement claims, are preempted
by the Copyright Act. 17 U.S.C. § 301(a); see Dun &
Bradstreet, 307 F.3d at 217–18. Finally, we will affirm the
District Court’s determination that further amendment to the
complaint would have been futile. Tanksley, 259 F. Supp. 3d
at 304 n.14.
                              IV
      We will AFFIRM the judgment of the District Court.




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