Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VICTOR P. HENDERSON,

Plaintiff,

v. Case No. 8:25-cv-02561-MSS-NHA

STARZ ENTERTAINMENT, LLC.

Defendant.

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REPORT AND RECOMMENDATIONS

Plaintiff Victor P. Henderson, who is not represented by a lawyer, seeks

to proceed without paying the filing fee in his action against Starz

Entertainment, LLC, Lionsgate Entertainment Corp., Curtis “50 Cent”

Jackson, G-Unit Film & Television, Inc., Courtney A. Kemp, End of Episode,

Inc., Sascha Penn, and 1000 unnamed John Does. Doc. 17. I respectfully

recommend that the Court deny Plaintiff’s renewed motion to proceed without

paying the filing fee (Doc. 17), and dismiss his Second Amended Complaint

(Doc. 16), because Plaintiff has failed to state a non-frivolous claim.

I. Background

According to the Second Amended Complaint, Plaintiff maintained a

personal journal. 2d Am. Compl. (Doc. 16) ¶ 21. That journal was removed from

Plaintiff’s residence by one of only a limited number of individuals with access

to it. 2d Am. Compl. (Doc. 16) ¶ 22.

Plaintiff also created a literary work that was “related to, but distinct

from” his personal journal. 2d Am. Compl. (Doc. 16) ¶ 21. That literary work is

titled “ROTT3N~$~APPLE DECISIONS OF A WALL STREET THUG

BL3$$3D & H8’D! FROM THUG TO WALK STREET THIS A SOUTHSIDE

JAMAICA QUEENS STORY” (“Decisions”), and has been copyrighted. 2d Am.

Compl. (Doc. 16) ¶¶ 15–16.

One of Plaintiff’s close family members appeared as an extra on season

2, episode 8 of a show called Power Book III: Raising Kanan. 2d Am. Compl.

(Doc. 16) ¶ 19. Plaintiff suspects that his family member shared Plaintiff’s

journal with individuals on the set of Power Book III: Raising Kanan. 2d Am.

Compl. (Doc. 16) ¶ 20. Thereafter, Plaintiff claims that Power Book III: Raising

Kanan incorporated character arcs, plot sequences, settings, narrative beats,

and plot devices that infringed on his trademarked work. 2d Am. Compl. (Doc.

16) ¶ 24.

Plaintiff cites the following as evidence of Defendants’ copying of his

work:

Plaintiff’s Work Defendants’ TV Series

Character: Elise Hawkins, a Character: Joyce Thomas, a

terminally ill parent who hides the terminally ill parent who hides the

fact that she has cancer from her kids fact that she has cancer from her kids

Dialogue: “You’re gonna outlive all of Dialogue: “She gonna outlive all of

us!” us.”

Dialogue: “Take care of your brother.” Dialogue: “Take care of your brother.”

Morality Arc: Mother’s hidden cancer Morality Arc: mother with cancer

drives protagonist’s moral concealing from family with similar

development via secrecy and final discussions

instructions

Character: Justine Hawkins, Character: various female victims

someone tortured, murdered, and who were tortured, murdered, and

thrown out like trash whose body was thrown out like trash whose bodies

found in an abandoned area in a were found in an abandoned area in

remote part of the city. a remote part of the city.

Scene: Abandoned remote area where Scene: Abandoned remote areas on

body was dumped. outskirts of town where bodies are

found.

Doc. 16-1 pp. 65–67.

Based on these comparisons, Plaintiff brings two copyright claims:

willful copyright infringement under 17 U.S.C. § 501 (Count I) and

contributory and vicarious copyright infringement under 17 U.S.C. § 501

(Count II).

II. Legal Standard

The federal statute that governs the right to bring a lawsuit without pre-

paying a filing fee, 28 U.S.C. § 1915, “is designed to ensure that indigent

litigants have meaningful access to the federal courts.” Neitzke v. Williams,

490 U.S. 319, 324 (1989). “Congress recognized, however, that a litigant whose

filing fees and court costs are assumed by the public, unlike a paying litigant,

lacks an economic incentive to refrain from filing frivolous, malicious, or

repetitive lawsuits.” Id. To that end, section 1915 provides that a court shall

dismiss a case if the court determines the action is frivolous or malicious, fails

to state a claim on which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

An action is frivolous when a complaint lacks an arguable basis either in law

or in fact. Neitzke, 490 U.S. at 325.

Federal courts must hold pro se filings (meaning those papers filed by a

party who represents himself) to “less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). More

specifically, a court must “provide[] pro se parties wide latitude when

construing their pleadings and papers” and to “use common sense to determine

what relief the party desires.” S.E.C. v. Elliot, 953 F.2d 1560, 1582 (11th Cir.

1992). Nonetheless, courts need not exempt pro se litigants from complying

with the requirements imposed by the law and rules of procedure. See Brown

v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990); Moon v. Newsome, 863 F.2d

835, 837 (11th Cir. 1989).

III. Analysis

Plaintiff brings two counts alleging copyright infringement.

To establish copyright infringement, a plaintiff must plead facts showing

(1) the plaintiff owned a valid copyright and (2) the defendant copied protected

elements of the plaintiff’s original work. MiTek Holdings, Inc. v. Arce Eng’g

Co., 89 F.3d 1548, 1553–54 (11th Cir. 1996); see also Beal v. Paramount

Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994). Because it is difficult to prove

copying with direct evidence, courts―including the Eleventh Circuit―provide

a two-part test to determine whether copying may be inferred. Original

Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982).

First, a court asks whether the defendant had access to the plaintiff's

work. Id. If so, it asks whether “the defendant’s work is substantially similar

to the plaintiff's.” Id. But if a Plaintiff does not plead that a defendant had

access to the copyrighted work, a plaintiff must show that the works

were strikingly similar. Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th

Cir. 2007). Striking similarity exists only when the works are so similar that

there is no possibility of independent creation, coincidence, and prior common

source. Id.

In pleading the defendant copied protected elements of the plaintiff’s

original work, a plaintiff must also plead facts that show that the similarities

between the copyrighted work and the alleged copy are “copyrightable

material.” Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1248 (11th Cir.

1999)); MiTek Holdings, Inc. v. Arce Eng'g Co., 89 F.3d 1548, 1554 (11th Cir.

1996) (“Even if the court finds that the putative infringer copied portions of the

copyright owner’s program, that is not the end of the inquiry. Copyright

infringement occurs only if one copies protected elements of a copyrighted

work[.]”).

“Because the Copyright Act protects ‘original works of authorship,’ 17

U.S.C. § 102(a), the ‘sine qua non of copyright is originality.’” Beal v.

Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994) (citing Feist

Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991)).

And, “[t]he mere fact that a work is copyrighted does not mean that every

element of the work may be protected.” Feist Publications, Inc. v. Rural

Telephone Service Co., 499 U.S. 340, 348 (1991). Broad ideas cannot be

copyrighted, nor can “stock scenes that naturally flow from a common theme,”

which are known as scènes à faire. Beal v. Paramount Pictures Corp., 20 F.3d

454, 459 (11th Cir. 1994); see also DuBay v. King, 844 F. App'x 257, 265 (11th

Cir. 2021) (“Even assuming that the characters share some similarities

concerning their knightly heritage, travel to different times and parallel

worlds, Western attire, fictionalized Alamo histories, and knife-wielding, these

similarities are scènes à faire that are too general to merit copyright

protection.”).

A court can dispose of a copyright case on the pleadings if all similarities

alleged concern unoriginal aspects of the work, since “separat[ing] protectable

expression from non-protectable expression is, in reality, a question of law or,

at the very least, a mixed question of law and fact.” Intervest Consrt., Inc. v.

Canterbury Est. Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008); see also

Singleton v. Dean, 611 F. App'x 671, 672 (11th Cir. 2015) (affirming dismissal

of a complaint when the pro se plaintiff “has not shown any examples of

copyright infringement, because the alleged similarities either do not exist or

concern broad ideas[.]”); Bennett v. Walt Disney Co., No. 23-12786, 2024 WL

4040443, at *2 (11th Cir. Sept. 4, 2024) (affirming dismissal of copyright

infringement claim because none of the elements alleged to have been copied

were “original, and thus none are protectable.”).

Here, Plaintiff pleads that he was issued a copyright registration,

effective December 14, 2021 for his literary work. 2d Am. Compl. (Doc. 16) ¶¶

15–16. This literary work is what Plaintiff claims Defendants infringed. 2d

Am. Compl. (Doc. 16) ¶ 24.

Next, Plaintiff attempts to show that Defendants had access to the

copyrighted work by pleading that his close family member, who had access to

Plaintiff’s journal, was an extra on the set of Power Book III: Raising Kanan

where he shared the work. 2d. Am. Compl. (Doc. 16) ¶ 20–22. But Plaintiff

explicitly distinguishes the journal from his copyrighted work. Am. Compl.

(Doc. 16) ¶ 21 (“In addition to the Registered Work, Plaintiff maintained a

private, unpublished personal journal containing original creative expression

related to, but distinct from, his copyrighted literary work.” (emphasis added)).

Thus, even if the Court accepts as true that Defendants had access to the

journal, it is not clear that Defendants had access to the copyrighted work.

And, because Plaintiff does not plead that Defendants had access to the

copyrighted work, he must show that the works were strikingly similar,

meaning there is no possibility of independent creation, coincidence, or prior

common source. Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir.

2007).

Even construing Plaintiff’s Amended Complaint liberally, he does not

plead facts to show that the material allegedly copied was so original as to be

protected by copyright or so similar as to preclude the possibility of

independent creation, coincidence, or prior common source.

Again, Plaintiff pleads Defendants copied the following elements of his

work: a dying mother who mentions someone “outliv[ing] us all” and directs a

son to “take care of your brother,”; a concealed cancer diagnosis; and murder

victims whose bodies are “discarded like trash” in a remote abandoned area.

But because none of these elements is original in a copyright sense or is alleged

to have been duplicated in a strikingly similar way, the pleadings are

insufficient to show copyright infringement.

To start, dying mothers who conceal their diagnoses—or reveal them

selectively—are somewhat commonplace in modern plots. See e.g., MY LIFE

WITHOUT ME (2003) (woman learns she has ovarian cancer and has two

months to live and plans for her death while telling no one about her diagnosis),

THE BIG C (2010 –2013) (mother faces melanoma diagnosis, which she initially

hides from her loved ones), MR. CHURCH (2016) (mother entrusts cook with

secret of her cancer but he must promise to keep it secret from her daughter).

Thus, Plaintiff’s idea of the dying mother who conceals her diagnosis is not a

concept so original as to warrant copyright protection. Feist Publications, Inc.

v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (Protectable elements include only

the “constituent elements of the work that are original.”).

Next, while Decisions and Raising Kanan appear to share the dialogue

“You’re gonna outlive all of us!” and “Take care of your brother,” both lines are

the sort of ordinary, common expressions that courts have rejected as non-

copyrightable. Narell v. Freeman, 872 F.2d 907, 911–12 (9th Cir. 1989)

(Ordinary words and phrases are not entitled to copyright protection, nor are

“phrases and expressions conveying an idea typically expressed in a limited

number of stereotyped fashions.”); Olson v. Nat'l Broad. Co., 855 F.2d 1446,

1450 (9th Cir. 1988) (holding a successful claim of dialogue infringement

requires “extended similarity of dialogue” between the two works.); Southco,

Inc. v. Kanebridge Corp., 390 F.3d 276, 285–287 (3d Cir. 2004) (recognizing the

longstanding principle of copyright law that words and short phrases are not

copyrightable); Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d

1043, 1072 (C.D. Cal. 2010) (agreeing, in deciding summary judgment,1 that

certain “lines contain[ed] similar words,” such as “I miss you,” “He's so funny,”

“Stay away from this neighborhood,” and “Mmm. That's it,” but finding they

were “ordinary, common expressions that [were] not copyrightable”); Braham

v. Sony/ATV Music Publ'g, No. CV 15-8422 MWF (GJSx), 2015 WL 7074571,

at *5 (C.D. Cal. Nov. 10, 2015) (denying a pro se plaintiff permission to proceed

without pre-paying the filing fee and dismissing his complaint because that

the repetition of the phrases “Haters gonna hate” and “Players gonna play”

between two songs was, in itself, insufficient to create a plausible case

of copyright infringement). The phrase “outlive us all” has been used in other

films. See, e.g., ICE AGE: CONTINENTAL DRIFT (2012) (“She'll outlive us all, you

1 While this case, and some of the others cited in this opinion, were

decided at the summary judgment stage, the Eleventh Circuit has made clear

that a court can dispose of a copyright case on the pleadings if all similarities

alleged concern unoriginal aspects of the work, since “separat[ing] protectable

expression from non-protectable expression is, in reality, a question of law or,

at the very least, a mixed question of law and fact.” Intervest Consrt., Inc. v.

Canterbury Est. Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008). Thus, at the

motion to dismiss stage, the Eleventh Circuit has delved into whether the

plaintiff’s alleged similarities are protectable. See Singleton v. Dean, 611 F.

App'x 671, 672 (11th Cir. 2015) (affirming sua sponte dismissal of a pro se

Plaintiff’s complaint “because the alleged similarities either do not exist or

concern broad ideas or scènes à faire.”); Bennett v. Walt Disney Co., No. 23-

12786, 2024 WL 4040443, at *2 (11th Cir. Sept. 4, 2024) (“The mask

similarities once again concern scenes a faire in the superhero and action

genres. Owl is not the only character to wear a respirator. See Memorable

Movie Characters of the 2010s, LIST CHALLENGES (Ant-Man, Bane); Jason

Guerrasio, The 51 greatest movie villains of all time, ranked, BUSINESS

INSIDER (Aug. 19, 2022) (Darth Vader, Immortan Joe).”).

know that, right?”); THERE WAS A CROOKED MAN (1970) (“You’ll outlive us all”).

The same is true of “take care of your brother.” See, e.g., RED DAWN (1984)

(“Jed, take care of your brother, you hear me?"); ICE AGE: DAWN OF THE

DINOSAURS (2009) (“Stay here! You take care of your brother now.”); FURIOUS

7 (2015) (“You take care of my brother”).

As to the final elements that Plaintiff alleged Defendants copied (murder

victims whose bodies are “discarded like trash” and a scene in a remote

abandoned area), these are scènes à faire. In other words, Plaintiff is not the

first author of a crime drama to have a scene where a body (or bodies) has been

dumped in a remote, uninhabited area. Rather, this is a general scene in a

crime drama that does not warrant copyright protection. See Walker v. Time

Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986) (explaining, in affirming

summary judgment, “Elements such as drunks, prostitutes, vermin and

derelict cars would appear in any realistic work about the work of policemen

in the South Bronx. These similarities therefore are unprotectible as ‘scenes a

faire,’ that is, scenes that necessarily result from the choice of a setting or

situation.”). Indeed, shows like CSI: Crime Scene Investigation are replete with

scenes of bodies being discarded in remote areas.

In other words, the elements Plaintiff identifies appear unoriginal, in a

copyright sense, or otherwise without striking similarity sufficient to rule out

independent creation, coincidence, or prior common source. Thus, no element

Plaintiff asserts Defendants copied is protected by copyright.

IV. Conclusion

For the reasons stated above, I find Plaintiff has failed to state a non-

frivolous claim. I thus respectfully recommend that the Court deny Plaintiffs

request to proceed without paying the filing fee. Because Plaintiff has now been

allowed to amend his complaint twice (including once after being warned that

he must allege protected elements were copied) and because it does not appear

that additional amendments could cure the defects identified above, I

respectfully RECOMMEND:

(1) Plaintiff's Second Amended Complaint (Doc. 16) be DISMISSED

WITH PREJUDICE for failure to state a claim;

(2) Plaintiffs motion to proceed in forma pauperis (Doc. 17) be

DENIED.

SUBMITTED for the District Court’s consideration on May 19, 2026.

Mola HIRT ADAMS

United States Magistrate Judge

NOTICE TO PARTIES

A party has fourteen days from this date to file written objections to the Report

and Recommendation’s factual findings and legal conclusions. A party’s failure

12

to file written objections waives that party’s right to challenge on appeal any

unobjected-to factual finding or legal conclusion the district judge adopts from

the Report and Recommendation. See 11th Cir. R. 3-1. To expedite resolution,

parties may file a joint notice waiving the 14-day objection period.