Biani v. Showtime Networks, Inc.

District court dismisses without prejudice writer’s copyright infringement suit accusing Showtime and makers of television series Penny Dreadful of stealing characters she created in online role-playing community, holding she failed to allege that defendants had access to her online posts. 

Plaintiff Anna Biani joined an online role-playing forum called “Murders & Roses: Victorian London Crimes & Scandals,” through which the members created their own characters to develop “London-based, crime-related plot lines.” Through more than 1,000 posts, beginning in 2011, Biani created three characters: Charlotte Benoit (a courteous, feminine cross-dressing witch doctor specializing in magical plants), Frederick FitzClarence (a man with a “habit of public displays of sexuality,” seizures and dark thoughts) and Landon Lloyd (a clairvoyant, nomadic explorer who wears pinstripes). In 2013, Showtime aired the television show Penny Dreadful, a Gothic fiction series set in Victorian London with occult elements and themes of sexuality and crime, featuring characters Vanessa Ives and Sir Malcolm Murray. 

Biani filed suit for copyright infringement, alleging defendants Showtime Networks, Inc., Showtime Digital, Inc., John Logan and/or David Nevins accessed her posts through the forum and copied them to create the Ives and Murray characters. Defendants moved to dismiss, arguing Biani failed to plead the two essential elements of a copyright infringement claim: copyright ownership and copying.

To determine whether Biani adequately alleged copyright ownership in her three characters, the district court applied two tests established by the Ninth Circuit for character protection: (1) the “story being told” test and (2) the “Towle test” developed by the appeals court in 2015 in its DC Comics v. Towle decision.

First, the court held that Biani’s characters did not satisfy the “story being told” test because the story at issue was not “essentially a character study” of the characters. The forum involved the creation of a crowdsourced story whose plot predated Biani’s creation of her characters, so Biani’s characters were not the driving force of the story. 

Second, under the Towle test, a character may merit copyright protection if (1) the character has physical and not just conceptual qualities; (2) the character has consistent, identifiable and well-delineated traits that make it recognizable wherever it appears; and (3) the character is “especially distinctive” and contains “unique elements of expression.” The court held that Biani’s characters satisfied all three elements of this test. Defendants did not dispute that the characters had physical qualities, were recognizable and consistent across Biani’s posts, and had unique and specific qualities.

Regarding the element of copying, the court evaluated whether Biani sufficiently alleged (1) access based on a “particular chain of events” through which defendants were connected to her work and (2) “striking similarity” between the characters. Biani failed to allege a particular chain of events establishing access and instead relied on only a conclusory, one-sentence allegation. Further, Biani failed to establish an inference of copying based on striking similarity because most of the characters’ similarities were “stock” aspects of the Victorian-era crime genre. While some similarities existed, it remained possible that defendants independently created the Penny Dreadful characters. The court dismissed the complaint, with leave to amend, noting it was “unclear whether additional allegations could cure the deficiency as to access and the characters’ actionable similarities[.]”

Summary prepared by David Grossman and Keane Barger