Baker v. Coates

Full title: RALPH W. BAKER, JR., Plaintiff, v. TA-NEHISI P. COATES, et al., Defendants.

Court: United States District Court, S.D. New York

Date published: Jul 26, 2023

Civil Action 22 Civ. 7986 (JPO) (SLC) (S.D.N.Y. Jul. 26, 2023)

Opinion

Civil Action 22 Civ. 7986 (JPO) (SLC)

07-26-2023

RALPH W. BAKER, JR., Plaintiff, v. TA-NEHISI P. COATES, et al., Defendants.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I.INTRODUCTION

Pro se Plaintiff Ralph W. Baker, Jr. (“Mr. Baker”) is the author and copyright owner of “Shock Exchange: How Inner-City Kids From Brooklyn Predicted the Great Recession and the Pain Ahead” (“Shock Exchange”), an autobiographical book “about basketball, economics, finance and financial literacy” that he self-published in 2012. (ECF No. 2 (the “Complaint”) at 7, 31 ¶¶ 7, 145). Mr. Baker brings this action against author and journalist Ta-Nehisi P. Coates (“Coates”) and 24 other defendants (with Coates, “Defendants”),¹ alleging “willful copyright infringement in Coates' books, articles, and movies[,]” including Between the World and Me (“Between”), We Were Eight Years in Power: An American Tragedy (“Eight Years”), The Water Dancer: A Novel (“Water Dancer”), the Black Panther comic book series (the “Black Panther Comic”) and movie (the “Black Panther Movie”), the Captain America comic book series (the “Captain America Comic,” with the Black Panther Comic, the “Comics”), and “every article Coates has written for The Atlantic since 2014, including ‘The Case For Reparations,' and ‘The Black Family In The Age Of Mass. Incarceration'” (together, the “Works”). (Id. at 6-7 ¶ 1).

1 The 24 other Defendants are BCP Literary, Inc. (“BCP”), The Atlantic, Laurene Powell Jobs (“Jobs”), David G. Bradley (“Bradley”), Bertelsmann SE & Co. KGaA (“Bertelsmann”), Spiegel & Grau (“Spiegel”), Chris Jackson (“Jackson”), Nicole Counts (“Counts”), Victory Matsui (“Matsui”), Kenyatta Matthews (“Matthews”), the Apollo, Maceo-Lyn, Kamilah Forbes (“Forbes”), Susan Kelechi Watson (“Watson”), Warner Bros. Discovery, Inc. (“Warner”), Oprah Winfrey (“Winfrey”), The Walt Disney Company (“Disney”), Apple, Inc. (“Apple”), Plan B Entertainment, Inc. (“Plan B”), MGM Studios (“MGM”), Ryan Coogler (“Coogler”), Joe Robert Cole (“Cole”), Roxane Gay (“Gay”), and Yona Harvey (“Harvey”). (ECF No. 2).

The Honorable J. Paul Oetken has referred for a report and recommendation the following four motions (the “Motions”) to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b): (i) the motion of Defendants Coates, BCP, The Atlantic, Jobs, Bradley, Bertelsmann, Spiegel, Jackson, Counts, Matsui, Matthews, Maceo-Lyn, Watson, Warner, Disney, Plan B, MGM, Coogler, Cole, Gay, and Harvey (the “DWT Defendants”),² to dismiss the Complaint for failure to failure to state a claim, and, as to certain DWT Defendants, insufficient service of process (ECF No. 89 (the “DWT Defendants' Motion)); (ii) Winfrey's motion to dismiss the Complaint for insufficient service of process (ECF No. 91 (“Winfrey's Motion”)); (iii) the motion of The Apollo and Forbes (the “Apollo Defendants”), to dismiss the Complaint for failure to state a claim (ECF No. 96 (the “Apollo Defendants' Motion”)); and (iv) Apple's motion to dismiss the Complaint for failure to state a claim (ECF No. 114 (“Apple's Motion”); see ECF No. 8).

2 “DWT” refers to Davis Wright Tremaine LLP, the law firm representing these Defendants.

For the reasons set forth below, I respectfully recommend that the Motions be GRANTED, and that the action be DISMISSED WITH PREJUDICE.

II.BACKGROUND

A. Factual Background

The Court draws the following facts from the allegations in the Complaint and accompanying 91 pages of exhibits, and accepts them as true for purposes of the Motions. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Dreamtitle Publ'g, LLC v. Penguin Random House, LLC, No. 22 Civ. 7500 (GHW), 2023 WL 4350734, at *1 n.1 (S.D.N.Y. July 5, 2023).³

3 Internal citations and quotation marks are omitted from case citations unless otherwise noted.

In August 2012, Mr. Baker published Shock Exchange “electronically” and registered the book with the U.S. Copyright Office. (ECF No. 2 at 7 ¶ 7; see id. at 14 ¶ 58). In November 2012, “[a] print version was completed.” (Id. at 7 ¶ 7). In Mr. Baker's words, “Shock Exchange explains the stock market and the economy through the eyes of the New York Shock Exchange, a travel basketball team and financial literacy program Mr. Baker started in 2006 for his 11-year-old son and other boys his age.” (Id. at 15 ¶ 65). The book “describe[s] Mr. Baker's life growing up in Farmville / Prince Edward County, VA, and the life lessons he learned [,]” (id. at 16 ¶ 67), and “allowed Mr. Baker to pass along his passion for basketball and investing with kids.” (Id. at 15 ¶ 65). In Shock Exchange, Mr. Baker “explained (1) Virginia history, including Reconstruction and Prince Edward County, VA, (2) the vagaries of the banking industry and how it has evolved and (3) key tenets of the economy, including the ‘black Tax'-high unemployment and mass incarceration amongst Blacks.” (Id. at 24 ¶ 112). His “analysis on the period of Reconstruction in Virginia described the rise of the Readjuster Party, the disenfranchisement of Blacks that led to the dismantling of the Readjuster Party, and the rise of Virginia governor Harry Byrd.” (Id. at 26 ¶ 121). He also described how, while “studying and mastering the community reinvestment act” in 1989, Mr. Baker “uncovered how Blacks resisted redlining in Illinois[.]” (Id. at 25 ¶ 118).

In 2013, “Shock Exchange was reviewed by Library Journal” (the “Review”). (ECF No. 2 at 7 ¶ 7). The Review noted that, in Shock Exchange, Mr. Baker “explores the African American experience from an economic perspective by telling the story of his early life in Farmville, VA.” (Id. at 16 ¶ 70). “In the second half of 2013[,] Mr. Baker sent a copy of Shock Exchange and [the Review] to several journalists, including someone named ‘Ta-Nehisi Coates' at The Atlantic.” (Id. at 7 ¶ 8). “Mr. Baker never heard back from Coates[.]” (Id. at 8 ¶ 9).

Six years later, in September 2019, Mr. Baker purchased a copy of Coates' first novel, Water Dancer, “[a]fter hearing all the hype[.]” (ECF No. 2 at 8 ¶ 9). Mr. Baker alleges that he “immediately noticed Coates had attempted to mimic his dense, rhythmic prose” and “tedious talk” and that, “[w]ithout authorization,” Coates had “copied portions of Shock Exchange.” (Id. at 8 ¶¶ 9-10). After “a painstaking investigation into Coates,” his previous writings, and each of the Works, (id. at 8 ¶ 11), Mr. Baker concluded that, over “the course of nearly a decade, Coates [had] deconstructed Shock Exchange[,] . . . copied numerous passages, changed the words around (yet keeping the same expression), and moved the passages out of sequence in order to avoid detection.” (Id. at 7 ¶ 3).

Mr. Baker alleges that “Coates' plunder began” with “The Case for Reparations” (the “2014 Essay”) and “The Black Family in the Age of Mass. Incarceration” (the “2015 Essay”), two essays Coates wrote for The Atlantic in 2014 and 2015, respectively (together, the “Essays”). (ECF No. 2 at 8, 27 ¶¶ 11-12, 125, 130).⁴ In 2017, a company owned by Bertelsmann published Coates' book Eight Years, which is “a selection of eight articles from The Atlantic during [] President Obama's eight years in office-what [Coates] referred to as a period of ‘Good Negro Government.'” (Id. at 25 ¶ 113; see id. at 9 ¶ 18).⁵Eight Years included the Essays. (Id. at 25 ¶¶ 116-17). Mr. Baker alleges that, in the Essays, Coates copied from the Shock Exchange Mr. Baker's “interpretative analysis” of topics including mass incarceration and Reconstruction. (Id. at 25 ¶¶ 115-17).

4 Bradley owned The Atlantic, a “cultural and literary magazine[,]” when the Essays were published. (ECF No. 2 at 11 ¶ 36). In 2017, he sold a majority stake in The Atlantic to Jobs. (Id.; see id. at 44 ¶ 208).

5 BCP owns the copyright for Eight Years. (ECF No. 2 at 10 ¶ 26).

Mr. Baker claims that Coates also “plagiarized Between [] (2015), which won the National Book Award, . . . and [] Water Dancer (2019).” (ECF No. 2 at 8 ¶ 13).⁶ Mr. Baker alleges that “Coates attempted to write these books in [Mr. Baker]'s voice and replicate [Mr. Baker]'s dense, rhythmic prose.” (Id.) In the Complaint, Mr. Baker alleges that, in 2018, “The Apollo created a stage adaptation for Between” that “included readings of excerpts from the book[.]” (Id. at 52 ¶ 252).⁷

6 Spiegel published, sold, and marketed Between, which Jackson edited. (ECF No. 2 at 10, 12 ¶¶ 29, 41). Water Dancer was published in 2019 by a company “owned by Bertelsmann[.]” (Id. at 9 ¶ 18). BCP “owns the copyright for [] Water Dancer[.]” (Id. at 10 ¶ 26). Jackson, Counts, and Matsui “worked with Coates” in the editing and publication of Water Dancer. (Id. at 12 ¶¶ 40, 42, 43). “Matthews is a collaborator in the Maceo-Lyn production company[,]” which, with MGM and Plan B, “plans to create a film adaptation of [] Water Dancer.” (Id. at 13 ¶ 47). “In November 2019[,] [] Winfrey interviewed [Coates] about [] Water Dancer for Oprah's Book Club.” (Id. at 59 ¶ 293). Apple broadcast the interview on its streaming service. (Id.)

7 “Forbes is the executive producer at The Apollo” and directed the stage production of Between. (ECF No. 2 at 13 ¶ 48). “In November 2020, the stage adaptation was broadcast on HBO[,]” (id. at 54 ¶ 262), which is owned by Warner. (Id. at 9 ¶ 23). Watson, an actor, “performed in the theatrical production of Between . . . at the Apollo and on HBO.” (Id. at 56 ¶ 273).

Similarly, Mr. Baker alleges that “Coates attempted to mimic Shock Exchange['s] rhythmic prose and tedious talk for his . . . comic books, Black Panther and Captain America[,]” for which Coates became a writer in 2016 and 2018, respectively. (ECF No. 2 at 8, 33, 34 ¶¶ 15, 150, 156).⁸Finally, Mr. Baker alleges that the dialogue for the 2018 superhero movie Black Panther, which he acknowledges Coates did not write, “was also copied from Shock Exchange.” (Id. at 8 ¶ 16; see id. at 36 ¶ 162).⁹

8 Disney owns the company that publishes the Comics. (ECF No. 2 at 9 ¶ 20). Gay and Harvey co-wrote the Black Panther Comic with Coates. (Id. at 66-67 ¶¶ 332, 337).

9 Disney produced the Black Panther Movie. (ECF No. 2 at 9 ¶ 19). Coogler directed the movie, which he co-wrote with Cole. (Id. at 14 ¶¶ 52-53). Mr. Baker does not allege that Coates wrote the Blank Panther Movie, but claims that, in a July 2016 interview, Coogler “marveled at Coates' poetic dialogue in the Black Panther comic book, and intimated he and [] Cole were inspired by Coates.” (Id. at 36 ¶ 163).

B. Procedural Background

On September 19, 2022, Mr. Baker filed the Complaint, asserting claims for copyright infringement under the Copyright Act, 17 U.S.C. §§ 101, et seq. (the “Copyright Claims”). (ECF No. 2 at 37-69 ¶¶ 170-352). Mr. Baker also alleges that each of the Defendants “has engaged in unfair competition” (the “Unfair Competition Claims”), though he does not specify whether he invokes the Lanham Act, 15 U.S.C. § 1125 (the “Lanham Act”), New York common law, or both. (Id. at 38-67 ¶¶ 177-339). On September 27, 2022, this matter was referred to me for general pretrial supervision and for a report and recommendation on all dispositive motions. (ECF No. 8).

On October 27, 2022, Mr. Baker filed affidavits of service (the “Affidavits”) of the Summons and Complaint as to certain Defendants, including Cole, Gay, Winfrey, Watson, Matsui, Maceo-Lyn, Jobs, MGM, Warner, Counts, Bradley, Plan B, Jackson, and Coogler. (ECF Nos. 16 21; 23; 25; 26; 28; 29; 31; 33; 36; see § IV.A.2, infra). Mr. Baker did not file affidavits of service as to Spiegel or Harvey.

If the Affidavit as to Winfrey is valid-a point she contests (ECF No. 92 at 4-5)-her deadline to respond to the Complaint was October 21, 2022. See Fed.R.Civ.P. 12(a)(1)(A)(i). On October 31, 2022, Winfrey requested, inter alia, an order quashing the Affidavit, arguing that the method of service was defective. (ECF No. 50). Winfrey did not request an extension of time to respond to the Complaint. (See id.) On November 1, 2022, the Court denied the request, and noted that, if Winfrey believed Mr. Baker failed to properly effect service of process, she could file a motion under Fed.R.Civ.P. 12(b)(5) or assert an affirmative defense based on inadequate service of process. (ECF No. 52 ¶ 1.b).

On November 21, 2022, Mr. Baker requested a certificate of default as to Winfrey. (ECF Nos. 76-77). On November 22, 2022, the Clerk of Court entered a certificate of default against Winfrey. (ECF No. 78 (the “Certificate”)). That same day, Winfrey requested an extension of time to respond to the Complaint. (ECF No. 79). On November 23, 2023, the Court granted Winfrey's request, extended until December 9, 2022 her deadline to answer, move, or otherwise respond to the Complaint, and sua sponte vacated the Certificate. (ECF No. 80).

On November 30, 2022, Mr. Baker acknowledged that his service on Plan B was “defective” and requested “permission to re-serve Plan B” through its registered agent for service, Warren Grant (“Grant”). (ECF No. 84). On December 2, 2022, the Court denied Mr. Baker's request without prejudice, noting that the deadline to serve Plan B had not yet lapsed. (ECF No. 86 at 2). The Court permitted Mr. Baker to renew the request on a showing of good cause if he was unable to serve Plan B by December 18, 2022, the service deadline. (Id.)

On December 9, 2022 and January 19, 2023, Defendants filed the Motions. (ECF Nos. 89; 91; 96; 114). The DWT Defendants' Motion includes complete copies of Shock Exchange and each of the Works. (ECF Nos. 90-2 - 90-10). Similarly, the Apollo Defendants' Motion includes a copy of the September 28, 2019 performance of Between at The Apollo, (ECF No. 98), and Apple's Motion includes a copy of the November 2019 episode of Oprah's Book Club released on Apple TV+. (ECF No. 116).¹⁰

10 With the Court's permission, Defendants filed the exhibits on compact disc. (ECF Nos. 85; 88; 113).

On December 12, 2023, Mr. Baker filed an affidavit reflecting that Plan B, through Grant, was served with the Summons and Complaint on December 8, 2022. (ECF No. 100 (the “Grant Affidavit”)).

On January 17, 2023, Mr. Baker requested an extension of time to serve the Defendants who contested service. (ECF No. 109). On January 20, 2023, DWT Defendants Coates, BCP, Matthews, Disney, and The Atlantic agreed to accept service through counsel. (ECF Nos. 119; 122; 123). Accordingly, on January 23, 2023, the Court granted Mr. Baker's request as to those Defendants, but otherwise denied the request without prejudice to renewal, if appropriate, on a showing of good cause following resolution of the Motions. (ECF Nos. 121; 124).

On January 20, 2023 and February 1, 2023, Mr. Baker filed oppositions to the Motions. (ECF Nos. 120; 126 (together, the “Opposition”)). On February 8, 2023 and February 17, 2023, Defendants filed replies. (ECF Nos. 128; 134-36). In their reply, the DWT Defendants did not contest Mr. Baker's subsequent service on Plan B through Grant, or otherwise address the Grant Affidavit. (See ECF No. 134).

III.LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(5)

“Rule 12(b)(5) provides for dismissal due to insufficient service of process.” Hines v. Roc-A-Fella Recs., LLC, No. 19 Civ. 4587 (JPO), 2020 WL 1888832, at *2 (S.D.N.Y. Apr. 16, 2020). “In order for this Court to exercise jurisdiction over [any defendant], ‘the procedural requirement of service of summons must be satisfied.'” Id. (quoting Omni Cap.l Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)).

“On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (summary order). “The adequacy of service of process is resolved by reference to Federal Rule of Civil Procedure 4(m), which ‘governs the content, issuance, and service of a summons.'” Hines, 2020 WL 1888832, at *2 (quoting DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010)). “Because a Rule 12(b)(5) motion implicates ‘whether [the court] has jurisdiction,' the court ‘looks to matters outside the complaint.'” Id. (quoting Cassano v. Altshuler, 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016)).

“[W]here a court has not conducted a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials.” Di Pompo v. Mendelson, No. 21 Civ. 1340 (CS), 2022 WL 1093500, at *2 (S.D.N.Y. Apr. 7, 2022). “To make the requisite prima facie showing, ‘the plaintiff must aver facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.'” Id. (quoting Garnett-Bishop v. N.Y. Cmty. Bancorp, Inc., No. 12 Civ. 2285 (ADS) (ARL), 2014 WL 5822628, at *10 (E.D.N.Y. Nov. 6, 2014)).

B. Federal Rule of Civil Procedure 12(b)(6)

Where a defendant moves to dismiss a complaint for failure to state a claim on which relief could be granted under Rule 12(b)(6), the Court must assess whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

To survive a motion to dismiss, “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). In evaluating a motion to dismiss, the Court “accept[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor.” Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *3 (S.D.N.Y. Dec. 14, 2020) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam)). “[T]he Court is not required to credit conclusory allegations or legal conclusions couched as factual allegations.” Id. at *2. “[A] complaint that offers ‘labels and conclusions' or ‘naked assertion[s]' without ‘further factual enhancement' will not survive a motion to dismiss.” Id. “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Id. (quoting DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87-88 (2d. Cir. 2013)). For purposes of Rule 12(b)(6), “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citations omitted).

C. Pro Se Considerations

In deciding a motion to dismiss, “the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Nonetheless, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *5 (S.D.N.Y. Mar. 6, 2020). Despite the Court's obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).

IV.DISCUSSION

A. Failure to Serve

Winfrey and DWT Defendants Cole, Gay, Watson, Matsui, Maceo-Lyn, Jobs, MGM, Warner, Counts, Bradley, Jackson, Coogler, Spiegel, and Harvey (together, the “Unserved Defendants”) seek dismissal for inadequate service of process.¹¹(ECF Nos. 92 at 4-5; 93 at 41; 134 at 13-14). Spiegel and Harvey note that Mr. Baker never filed affidavits of service as to them. (ECF No. 93 at41). The remaining DWT Defendants argue that, as reflected in the Affidavits, Mr. Baker “served copies of the [C]omplaint on individuals who were not authorized to accept service-including outside law firms, receptionists or concierges[,] and unnamed employees of private commercial mailbox facilities.” (Id.) Winfrey also argues that, “[b]y serving a manager of the building where Ms. Winfrey's counsel maintains an office,” Mr. Baker failed to properly serve her. (ECF No. 92 at 4).

11 DWT Defendants Coates, BCP, Matthews, Disney, and The Atlantic initially argued that Mr. Baker failed to serve them. (See ECF No. 93 at 41). As noted above, however, these Defendants subsequently agreed to accept service through counsel, (ECF Nos. 119, 121-23), and no longer seek dismissal based on lack of service. (ECF No. 134 at 13-14). Similarly, while Plan B initially contested service, (ECF No. 93 at 41 n.22), Mr. Baker subsequently served Plan B through Grant, and Plan B does not argue that this method of service was improper.

In his Opposition, Mr. Baker argues that the Unserved Defendants “were properly served[,]” and cites, inter alia, a case involving a mortgage foreclosure action in which “the summons and complaint were delivered to a person of suitable age and discretion at the subject property and [] copies thereof were subsequently mailed to that address[,]” and the Court found that the defendants had waived the right to challenge personal jurisdiction where they failed to do so timely in a motion to dismiss or other responsive pleading. (ECF No. 120 at 25-26 (citing JP Morgan Chase Bank v. Jacobowitz, 176 A.D.3d 1191, 1192 (2d Dep't 2019)). Mr. Baker does not argue that any of the individuals or entities named in the Affidavits were authorized to accept service on behalf of the Unserved Defendants, nor does he argue that he ever attempted to serve Spiegel or Harvey.

1. Legal standards

Service on an individual defendant must be accomplished by (1) following state law in the state where the district court is located or where service is made, (2) personally delivering a copy of the summons and complaint to the defendant, (3) leaving a copy of the summons and complaint at the defendant's residence with another resident, or (4) delivering a copy to an agent authorized by appointment or law to receive service of process. Fed.R.Civ.P. 4(e). “Under option (4), the state rules (as relevant here) largely track the federal rules[;] New York and California both require substituted service to be at the individual's actual dwelling, abode, place of business, or for California only, the individual's usual mailing address.” Wandel v. Gao, No. 20 Civ. 3259 (PAC), 2022 WL 61867, at *2 (S.D.N.Y. Jan. 6, 2022) (citing N.Y. C.P.L.R. § 308(2) & Cal. Code Civ. Proc. § 415.20). In California, “if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency[.]” Cal. Code Civ. Proc. § 415.20(c). Substitute service on an individual is permitted in California “‘only after a good faith effort at personal service has first been made.'” Bedminster Fin. Grp., Ltd. v. Umami Sustainable Seafood, Inc, No. 12 Civ. 5557 (JPO), 2013 WL 1234958, at *10 (S.D.N.Y. Mar. 26, 2013) (quoting Am. Exp. Centurion Bank v. Zara, 199 Cal.App.4th 383, 389 (2011)). “The burden is on the plaintiff to show that the summons and complaint cannot with reasonable diligence be personally delivered to the individual defendant.” Id. “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘reasonable diligence.'” Id.

Service on a corporation or association can be accomplished by following state law in the state where the district court is located or where service is made, or by delivering a copy of the summons and complaint to an officer, manager, or other authorized agent. Fed.R.Civ.P. 4(h)(1). “Unless service is waived, proof of service must be made to the court.” Fed.R.Civ.P. 4(1). “Under California law, a corporation may be served in several different ways[,]” including “by personally delivering a copy of the summons and complaint to, e.g., ‘the president, chief executive officer, or other head of the corporation . . . or a person authorized by the corporation to receive service of process.[,]"” or by “substitute service on a corporation is also permissible. Tech. Licensing Co. v. Noah Co. LLC, No. C-11-3498 (EMC), 2012 WL 3860758, at *2 (N.D. Cal. Sept. 5, 2012) (citing Cal. Civ. Proc. Code §§ 415.20(a), 416.10). Under New York law, a corporation may be served by delivering the summons and complaint “to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service[,]” including the New York Secretary of State. N.Y. C.P.L.R. 311(a)(1); see N.Y. Bus. Corp. Law § 306(b)(1).

“If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m); see Fed.R.Civ.P. 12(b)(5). “A plaintiff proceeding pro se is not excused from the requirement of proper service.” Vargas v. Zumiez, Inc., No. 19 Civ. 2056 (AT), 2020 WL 4548085, at *2 (S.D.N.Y. Aug. 5, 2020).

2. Application

Mr. Baker filed the Complaint on September 19, 2022. (ECF No. 2). Accordingly, he was required to serve each Defendant with the Summons and Complaint by December 19, 2022. Fed.R.Civ.P. 4(m).

Mr. Baker never filed affidavits of service as to Spiegel and Harvey, and the Affidavit as to MGM states that MGM was “NOT SERVED.” (ECF No. 25). In his Opposition, Mr. Baker does not argue-much less make a prima facie showing-that he served these Defendants. Accordingly, the Court finds that Mr. Baker failed to serve Spiegel, Harvey, and MGM.

With respect to the remaining Unserved Defendants, Mr. Baker filed the Affidavits purporting to have effected substitute service, as follows:

i. Cole: service effected on “Rose Leda Ehler” on October 14, 2022, by delivering the Summons and Complaint to “Eddie Jimenez,” a “Mailroom Associate” at the law firm Munger Tolles & Olson, LLP, at 350 South Grand Avenue in Los Angeles, California. (ECF No. 16).

ii. Gay: service effected on “Sylvie Rabineau” on October 11, 2022, by delivering the Summons and Complaint to “John Doe,” a “Building Concierge” at 245 N. Beverly Drive in Beverly Hills, California. (ECF No. 17).

iii. Winfrey: service effected on “Barry I. Slotnick as Attorney for Defendant,” on September 30, 2022, by delivering a copy of the Summons and Complaint to “Gina Torres,” the “Building Messenger Center,” at 345 Park Avenue in New York, New York. (ECF No. 18).

iv. Watson: service effected on “United Talent Agency” on October 3, 2022, by delivering the Summons and Complaint to “Jane Doe,” a “Building Concierge,” at 888 Seventh Avenue in New York, New York. (ECF No. 19).

v. Mastui: service effected on “Daniel R. Novak, Associate General Counsel,” on October 3, 2022, by delivering the Summons and Complaint to “Keith Lanasy as Legal Department Admin.,” at “Penguin Random House, 1745 Park Avenue, New York, NY.” (ECF No. 20).

vi. Maceo-Lyn: service effected on “David E. Fink” on October 14, 2022, by delivering the Summons and Complaint to “Dennis Washington, Mailroom Associates,” at Venable LLP, 2049 Century Park East Suite 2300 in Los Angeles, California. (ECF No. 21).

vii. Jobs: service effected on Jobs on October 11, 2022, by delivering the Summons and Complaint to “Michael ‘Doe' as the UPS store employee who confirmed [Jobs] does rent a private mailbox at said location” in Palo Alto, California. (ECF No. 23).

viii. Warner: service effected on “Savalle Sims as General Counsel” on September 30, 2022, by delivering the Summons and Complaint to “Wayne Grant as Building Messenger Center Agent” at 230 Park Avenue South in New York, New York. (ECF No. 26).

ix. Counts: service effected on “Daniel R. Novak, Associate General Counsel” on October 3, 2022 by delivering the Summons and Complaint to “Keith Lanasy as Legal Department Admin.,” at “Penguin Random House, 1745 Park Avenue, New York, NY.” (ECF No. 28).

x. Bradley: service effected on Bradley on October 13, 2022, by delivering the Summons and Complaint to “Stephanie Gruden as Office Admin.” at 600 New Hampshire Avenue, NW, in Washington, DC. (ECF No. 29).

xi. Jackson: service effected on “Daniel R. Novak, Associate General Counsel” on October 3, 2022 by delivering the Summons and Complaint to “Keith Lanasy as Legal Department Admin.,” at “Penguin Random House, 1745 Park Avenue, New York, NY.” (ECF No. 33).

xii. Coogler: service effected on “Rose Leda Ehler” on October 14, 2022, by delivering the Summons and Complaint to “Eddie Jimenez,” a “Mailroom Associate” at the law firm Munger Tolles & Olson, LLP, at 350 South Grand Avenue in Los Angeles, California. (ECF No. 36).

None of these Affidavits shows that Mr. Baker effected proper service on these Defendants. With respect to Jobs, as noted above, “[u]nder California law, substitute service on a commercial post office box is effective [only] when the facts suggest that diligent efforts at personal service were undertaken and no other reasonable means of service are available.” Bay Area Painters & Tapers Pension Tr. Fund v. Golden Vas Painting, No. C-10-2923 (CW) (DMR), 2011 WL 2020250, at *4 (N.D. Cal. Mar. 17, 2011), adopted by, 2011 WL 2015860 (N.D. Cal. May 24, 2011); see Cal. Civ. Proc. Code § 415.20. Here, Mr. Baker has failed to show that he made any effort to personally serve Jobs, much less that no other means of service were available.

With respect to the remaining Unserved Defendants-Cole, Gay, Winfrey, Watson, Matsui, Maceo-Lyn, Warner, Counts, Bradley, Jackson, and Coogler-Mr. Baker offers no basis to connect each Defendant to the person named in the Affidavits. Therefore, Mr. Baker has failed to make a prima facie showing that the individuals named in the Affidavits were authorized to accept service on behalf of these Defendants. Weston Funding, LLC v. Consorcio G Grupo Dina, S.A. de C.V., 451 F.Supp.2d 585, 590 (S.D.N.Y. 2006) (dismissing for lack of proper service where plaintiff did “not me[e]t its burden to show that [the served entity] was [the defendant]'s agent for service of process”); see Vargas, 2020 WL 4548085, at *2 (“To demonstrate an agency relationship, the plaintiff must show ‘something more than mere acceptance of service by a purported agent.'”) (quoting Richards v. N.Y.S. Dep't of Corr. Servs., 572 F.Supp. 1168, 1173 (S.D.N.Y. 1983)). “Because [Mr. Brown] has failed to ‘aver facts' that ‘would suffice to establish' that he served an agent for service of” these Defendants, “and he has not put forth facts that demonstrate any other acceptable mode of service, he has failed to make a prima facie showing that [these Defendants were] properly served.” Di Pompo, 2022 WL 1093500, at *3 (quoting Garnett-Bishop, 2014 WL 5822628, at *10).

* * *

Accordingly, the Court finds that Mr. Baker failed to serve the Unserved Defendants, and respectfully recommends that Winfrey's Motion and the DWT Defendants' Motion under Rule 12(b)(5) as to Cole, Gay, Watson, Matsui, Maceo-Lyn, Warner, Counts, Bradley, Jackson, Coogler, Spiegel, Harvey, and MGM be GRANTED.

3. Dismissal with prejudice

“Rule 4(m) provides that, where service is not made within ninety days after the complaint is filed, the Court must dismiss the action without prejudice unless good cause is shown for an extension of time to serve.” Nesbeth v. N.Y.C. Mgmt. LLC, No. 17 Civ. 8650 (JGK), 2019 WL 110953, at *4 (S.D.N.Y. Jan. 4, 2019). Where, however, “subsequent service of a complaint upon the defendant would be futile, the Court need not dismiss the action against that defendant without prejudice and may instead dismiss it with prejudice.” Ferrer v. Superintendent Orange Cnty. Jail, No. 08 Civ. 6527 (SCR) (PED), 2010 WL 306977, at *3 (S.D.N.Y. Jan. 26, 2010); see Black v. Vitello, 841 Fed.Appx. 334, 336 (2d Cir. 2021) (summary order) (“[A]lthough Rule 4(m) directs district courts to order dismissal ‘without prejudice' when based on a failure to timely serve process, Fed.R.Civ.P. 4(m), a district court may dismiss a case with prejudice where ‘[t]he problem with [the plaintiff's] causes of action is substantive' and ‘better pleading will not cure it[.]'”) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)); Cuello v. Lindsay, No. 09 Civ. 4525 (KAM) (MDG), 2011 WL 1134711, at *1 n.2 (E.D.N.Y. Mar. 25, 2011) (“[D]ismissal without prejudice is not appropriate because any attempt to amend the complaint should plaintiff show good cause for the delay, or any re-filing of the complaint as to the two unnamed defendants after dismissal without prejudice, would be futile.”).

As discussed below, (see § IV.B, infra), the Court finds that Mr. Baker's claims are substantively deficient because none of the Works is substantially similar to Shock Exchange. Thus, even if Mr. Baker could establish good cause for this failure to timely and properly serve the Unserved Defendants, subsequent service would be futile. Accordingly, the Court respectfully recommends that Mr. Baker's claims against the Unserved Defendants be DISMISSED WITH PREJUDICE.

B. Failure to State a Claim

The DWT Defendants, Apollo Defendants, and Apple each seek dismissal under Rule 12(b)(6) for failure to state a claim. The DWT Defendants argue, inter alia, that (i) Mr. Baker's Copyright Claims fail because they are based on elements that are unprotectible as a matter of law and, in any event, none of the Works is substantially similar to Shock Exchange, and (ii) Mr. Baker's Unfair Competition Claims are preempted. (ECF No. 93 at 17-38, 40-41). The Apollo Defendants, against whom Mr. Baker limits his claims to their stage adaptions of Coates' Works, “join all the arguments” by the DWT Defendants, noting that Mr. Baker's failure to state a “copyright infringement claim against Coates, without more, disposes of [his] related claims that the Apollo or Forbes [] infringed [his]copyright in Shock Exchange.” (ECF No. 97 at 3-4). Similarly, Apple, whose alleged involvement is limited to airing an episode of Winfrey's television show in which she interviewed Coates about Water Dancer, argues that “the television episode that Apple distributed shares no expressive elements with [Shock Exchange] that could possibly support an infringement claim.” (ECF No. 115 at 14). Apple also argues that, in any event, “there are not protectible similarities between Shock Exchange and [] Water Dancer.” (Id. at 14-21).

In his Opposition, Mr. Baker largely repeats his allegations in the Complaint. (ECF Nos. 120; 126). He argues that he “writes the way he speaks, [and] arranges words according to his speech pattern, which is peculiar to him and Prince Edward County, VA[,]” and that his “mode of expression[,]” i.e., his “rhythmic prose and tedious talk, . . . should be protected[.]” (ECF No. 120 at 6). He repeats his claim that, in the Essays, Coates copied his analysis of redlining, “and that, [i]n [] Water Dancer, [Coates] made references to ‘the house,' ‘up to the house,' or ‘the main house' countless times . . . to create the total concept and feel of Shock Exchange[.]” (Id. at 9). He argues that each of the Works “is a slavish imitation of Shock Exchange[,]” and cites to the side-by-side comparisons he attached to the Complaint. (Id. at 13-20). He also argues that his Unfair Competition Claims “are valid,” and repeats his allegations that the Defendants “engaged in the wholesale copying of Shock Exchange, the marketing of such wholesale copying or both.” (Id. at 24-25).

The Court first analyzes Mr. Baker's Copyright Claims, before turning to the Unfair Competition Claims.

1. Copyright Claims

a. Legal standards

“To establish a claim of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'” Abdin v. CBS Broad. Inc., 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). “To satisfy the second element, a plaintiff ‘must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's [work].” Id. (quoting Yurman Design, Inc. v. PAJ Inc., 262 F.3d 101, 110 (2d Cir. 2001)).

“The test for infringement of a copyright is of necessity vague.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010). “Where the disputed works are entirely protectible, ‘[t]he standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.'” Effie Film, LLC v. Pomerance, 909 F.Supp.2d 273, 291 (S.D.N.Y. 2012) (quoting Yurman Design, 262 F.3d at 111). “Where a work contains both protectable and unprotectable elements, however, the analysis must be ‘more discerning.'” Montgomery v. Holland, 408 F.Supp.3d 353, 362 (S.D.N.Y. 2019) (“Montgomery I”), aff'd sub nom. Montgomery v. NBC Television, 833 Fed.Appx. 361 (2d Cir. 2020) (summary order) (quoting Gaito, 602 F.3d at 66). “Specifically, ‘[the Court] must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar.'” Effie Film, 909 F.Supp.2d at 291 (quoting Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995)). “Put differently, a court, ‘confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.'” Montgomery I, 408 F.Supp.3d at 362 (quoting Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134-35 (2d Cir. 2003)).

“Only ‘the expression of ideas' is protected, ‘not the ideas themselves.'” Montgomery I, 408 F.Supp.3d at 362 (quoting Gaito, 602 F.3d at 67). “Courts have developed a number of general principles to identify the elements of a work that are ‘free for the taking' and therefore not protectable.” Montgomery I, 408 F.Supp.3d at 362 (quoting Tufenkian, 338 F.3d at 135). For example, “facts are not copyrightable[.]” Feist, 499 U.S. at 344. Similarly, “words, short phrases, titles, and slogans are not subject to copyright,” although copying of a phrase may be actionable “if the phrase amounts to a sequence of thoughts, choice of words, emphasis, and arrangement to satisfy the minimal threshold of required creativity, or if the copier has quoted or paraphrased a sequence of creative expression that includes an ordinary phrase.” Lewinson v. Henry Holt & Co., 659 F.Supp.2d 547, 568 (S.D.N.Y. 2009). “Copyright protection [also] does not extend to ‘scenes a faire,' or devices, elements, or sequences of events that ‘necessarily result from the choice of a setting or situation.'” Montgomery I, 408 F.Supp.3d at 363 (quoting Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996)).

“Still, ‘even a compilation of unprotectable elements may enjoy copyright protection when those elements are arranged in an original manner.'” Montgomery I, 408 F.Supp.3d at 363 (quoting Hogan v. DC Comics, 48 F.Supp.2d 298, 309 (S.D.N.Y. 1999)). “Ultimately, then, the court's inquiry ‘focuses on whether the alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged' the elements of his or her work.'” Id. (quoting Gaito, 602 F.3d at 66). “Merely listing ‘random similarities scattered throughout the works' cannot, on its own, support a finding of substantial similarity ‘because it fails to address the underlying issue: whether a lay observer would consider the works as a whole substantially similar to one another.'” Id. (quoting Williams, 84 F.3d at 590). “Instead, [courts] are principally guided by comparing the contested [work's] total concept and overall feel with that of the allegedly infringed work, as instructed by [the court's] ‘good eyes and common sense,'” Gaito, 602 F.3d at 66 (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 102 (2d Cir. 1999)), as well as an examination of “similarities in the theme, setting, characters, time sequence, plot, and pace.” Montgomery I, 408 F.Supp.3d at 363 (quoting Williams, 84 F.3d at 589). “It is only where the points of dissimilarity exceed those that are similar and those similar are-when compared to the original work-of small import quantitatively or qualitatively that a finding of no infringement is appropriate.” Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.1992). “That said, ‘[n]umerous differences tend to undercut substantial similarity.'” Effie Film, 909 F.Supp.2d at 292 (quoting Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir.1980)).

“Though the issue of substantial similarity is frequently a fact issue for jury resolution,” Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 239 (2d Cir. 1983), “[t]he Second Circuit has made it plain that where, as here, the works are incorporated into the complaint by reference, ‘it is entirely appropriate for [a court] to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation.'” Amanze v. Adeyemi, No. 18 Civ. 8808 (NRB), 2019 WL 2866071, at *5 n.4 (S.D.N.Y. July 3, 2019) (quoting Gaito, 602 F.3d at 64), aff'd, 824 Fed.Appx. 86 (2d Cir. 2020) (summary order)). “In other words, ‘no discovery or fact-finding is typically necessary, because what is required is only a . . . comparison of the works.'” Montgomery I, 408 F.Supp.3d at 363 (quoting Gaito, 602 F.3d at 64). “On such a comparison, ‘the works themselves supersede and control . . . any contrary allegations, conclusions or descriptions of the works contained in the pleadings.'” Id. at 363-64 (quoting Gaito, 602 F.3d at 64).

b. Summary of Shock Exchange and the Works

“A determination of substantial similarity requires a detailed examination of the works themselves,” and the Court therefore begins by “summarizing each work at issue[.]” Montgomery I, 408 F.Supp.3d at 365 (citing Williams, 84 F.3d at 583).

i. Shock Exchange

Shock Exchange is a 346-page autobiographical book that, in Mr. Baker's words, tells “a story about basketball, economics, finance and financial literacy[.]” (ECF No. 2 at 31 ¶ 145; see ECF No. 90-10). It begins with a history of Farmville, the small town in Prince Edward Country, Virginia, where Mr. Baker was born in 1967. (ECF No. 90-10 at 1-9). He writes that “Prince Edward is not known for much else than being your typical, small, college town[,]” where both Longwood University and Hampden-Sydney College are located. (Id. at 1). He also writes that “Farmville was made famous amongst African Americans by W.E.B. Du Bois in 1898 when he wrote The Negroes of Farmville: A Social Study[,]” with the “aim . . . to study the economic condition of the American Negro.” (Id. at 2).

Mr. Baker then describes his family, early childhood, and schooling. (ECF No. 90-10 at 937). He introduces the reader to “Gramma and Grandpa,” his paternal grandparents. (Id. at 9). Gramma “was a tall, slim, light-skinned lady who never had an unkind word to say about anybody” and “was probably the sweetest person [Mr. Baker has] ever known.” (Id.) Grandpa “was the total opposite of Gramma.” (Id. at 11). “He was short” and “mean as a rattlesnake.” (Id.) Mr. Baker also describes “Grandma,” his great-grandmother who had raised his mother from her teenage years. (Id. at 12). “Grandma and [Mr. Baker] shared as strong a bond as a great-grandmother and great-grandson could share.” (Id.) She “had about 20 grandkids, 17 great-grandkids and kept two or three foster kids from time to time[,]” (Id. at 13-14), but Mr. Baker “was her ‘pick.'” (Id. at 12). Grandma lived on a “20-plus-acre establishment” that Mr. Baker and his family called “Up the House.” (Id. at 13). “There was always something going on Up the House, like some big-time family gathering or activity.” (Id. at 17). “Grandma was the matriarch of the family and pretty much all-powerful in [Mr. Baker's] eyes.” (Id. at 15). Although “[s]he never laid a hand on” him, he was “literally scared to death of her” after having “witnessed some of the beatings she delivered to [his] older cousins.” (Id.) Finally, Mr. Baker describes his parents, “Suzie and My Daddy.” (Id. at 18-25). Suzie was the “quintessential ‘strong' black woman” who “pushed [Mr. Baker and his siblings] constantly” and “instilled in [them] to be ‘go-getters' and that we could accomplish whatever we wanted in life.” (Id.) My Daddy, by contrast, “was never around” because he “was always working” on weekdays and “always out with his cousin Larry” on the weekends. (Id. at 21-22). “When My Daddy was not barking orders or telling war stories, he was pretty much a killjoy.” (Id. at 22).

In the next section of the book, Mr. Baker describes his college years at Hampden-Sydney College. (ECF No. 90-10 at 38-57). He writes that “[w]hen [he] wasn't grinding in the classroom, [he] was grinding on the basketball court[,]” (id. at 39), and describes several memorable games as well as his decision to major in economics. (Id. at 29-45). The book then takes a turn into a discussion of various economics-related topics, including: (i) the “Law of Supply and Demand,” specifically in the context of the National Basketball Association, (id. at 46-50); (ii) the “Black Tax,” a term coined by a former colleague to describe “the cost of being black in America,” (id. at 51-52), (iii) unemployment and incarceration rates among African Americans, (id. at 52-54); and (iv) the “marginal propensity to consume.” (Id. at 54-55). Mr. Baker concludes this section noting that, when he graduated from college, he was “one of the best [basketball] players in the country,” had “a B.A. in economics,” and was “pretty much ready to bite the ass off a bear.” (Id. at 57).

Mr. Baker then describes his career in retail banking in the 1980s and 1990s. (ECF No. 9010 at 58-122). He started at Sovran Bank in Lynchburg, “the biggest and best bank in the state of Virginia[,]” and later became an assistant manager at a branch in Suitland, Maryland. (Id. at 58, 60, 63). In this section, Mr. Baker delves into various topics concerning or affecting the financial industry in the 1980s and 1990s, including interstate banking, the “Savings & Loan Debacle,” the “Japan Threat,” the Persian Gulf War, the “Commercial Real Estate Debacle,” and the “Leverage Buyout Craze.” (Id. at 60-72). After attending the University of Virginia Darden School of Business from 1991 through 1993, Mr. Baker began working for GE Capital Corporation (“GECC”) in Stamford, Connecticut. (Id. at 81-88; see id. at 52). Mr. Baker describes his training at GECC, some of the “interesting projects” and transactions on which he worked, and various “outside events” that impacted his “personal and professional outlook” including “race baiting of America,” the repeal of the Glass-Steagall Act, and playing basketball on the Stamford Express travel team. (Id. at 88-122).

At this point in the book, Mr. Baker transitions to the story of the Shock Exchange basketball team, which he created in 2006. (ECF No. 90-10 at 123-191). He describes how he established the program's “concept,” which was “[t]o challenge student athletes to ‘dream big dreams' on the basketball court as well as in the business world.” (Id. at 126). He also describes how, in the summer of 2006, he “asked the team to select a list of their favorite stocks that they wanted to invest in[,]” and then proceeded to hold “investment meetings” the team at which he would teach them “how professionals looked at investment fundamentals in order to determine whether an investment made sense financially, as well as from a common sense perspective.” (Id. at 140). “The fundamentals [Mr. Baker] focused on were price-to-earnings ratio . . . and earnings growth rate.” (Id.) Mr. Baker describes “the March 2008 investment meeting,” at which he presented his “take on the impending doom about the economy.” (Id. at 166).

Mr. Baker writes how he and the Shock Exchange team continued to discuss and blog about their prediction for the economy's impending collapse, (id. at 166-173), but their analysis “had seemingly fallen on deaf ears.” (Id. at 173). On October 21, 2008, however, Mr. Baker watched an interview with then-Senator and presidential candidate Barack Obama. (Id. at 174). During the interview, Senator Obama discussed, inter alia, the need to make higher education more affordable, particularly in response to the financial crisis. (Id.) Senator Obama also offered as “final words for the young people” that they should “dream big dreams.” (Id.) Mr. Baker writes that he “sat in front of the television stone-faced[,]” because Senator Obama had never before “referenced the cost of college.” (Id. at 175). Mr. Baker claims in Shock Exchange that “[i]t was clear why [Senator Obama] did not talk about the cost of college that much during the campaign - I had yet to mention it on my website.” (Id.) “And the final comment about ‘DREAM BIG DREAMS' . . . - there was only one place Mr. Obama could have lifted it.” (Id.)

In the final section of Shock Exchange, Mr. Baker provides his wide-ranging assessment of the roots of the Great Recession, his forecast for “the pain ahead,” and his analysis of how to avoid a future crisis. (ECF No. 90-10 at 176-330).

In an afterword, Mr. Baker explains that his “ultimate goal” in writing Shock Exchange was tripartite. (ECF Nod. 90-10 at 331). First, he sought to “describe the U.S. economy in ‘black and white.'” (Id.) Mr. Baker notes that he long “had the notion to write a book about the African-American experience-from an economic perspective[,]” and that he “hop[ed] the conclusion would be that despite unemployment rates of two to three times that of our white counterparts, African Americans were actually doing rather well given the constraints and roadblocks society has presented us with.” (Id.) Second, he sought to “describe the financial crisis and ‘the pain ahead' in layman's terms.” (Id.) He “wanted someone like [his] mother to be able to read it and understand the wrongdoings of the oligarchs and Wall Street robber barons[,]” and “the role politicians and the mainstream media played in setting the wheels in motion for the crisis to occur, and their culpability afterward.” (Id.) Third, he sought to “tell ‘our story,'” i.e., his “family's story” and the stories of “Gramma, Grandpa, Grandma, Suzie [and] My Daddy, the teachers who shaped me, [and] my Aunt Anna.” (Id.)

The final fifteen pages of Shock Exchange are a list of “Notes and Sources” Mr. Baker used. (ECF No. 90-10 at 332-46).

ii. The Essays and Eight Years ¹²

12 Although Mr. Baker alleges generally that “several of the articles and essays [in Eight Years] were copied from Shock Exchange[,]” (ECF No. 2 at 25 ¶ 113), the Complaint specifically references only the Essays. (Id. at 24-30 ¶¶ 112-38). Accordingly, the Court limits its discussion to these Essays.

a) The 2014 Essay

The 2014 Essay is a 16,000-word essay that appeared in The Atlantic in June 2014. (ECF No. 90-4 at 163-208).¹³It opens with an examination of Clyde Ross, a Black man born to a sharecropper family in Mississippi in the 1920s who challenged predatory home-lending practices in Chicago. (Id. at 164-72). Through the example of Ross, Coates discusses urban segregation, redlining, and the disproportionate accumulation of wealth among white Americans from the time of slavery to the present day. (Id. at 169-75). Coates writes that these “prejudices . . . extended even into the upper reaches of American government” and cites several U.S. government policies and institutions that have “failed black Americans,” including the New Deal, the GI Bill, Social Security, unemployment insurance, and the FHA. (Id. at 186-87). Citing earlier reparations scholarship, Coates references several “methods by which America might make reparations to those on whose labor and exclusion the country was built.” (Id. at 200). He argues more generally that:

13 See Ta-Nehisi Coates, The Case for Reparations, THE ATLANTIC (June 15, 2014), available at http://www.theatlantic.com/features/archive/2014/05/the-case-for-reparations/361631/

. . . we must imagine a new country. Reparations-by which I mean the full acceptance of our collective biography and its consequences-is the price we must pay to see ourselves squarely. The recovering alcoholic may well have to live with his illness for the rest of his life. But at least he is not living a drunken lie. Reparations beckon us to reject the intoxication of hubris and see America as it is-the work of fallible humans.

(Id. at 202). Coates writes that America is “not the first to be summoned to such a challenge[,]” citing the example of Germany's reparations after the Holocaust. (Id. at 203-06). He concludes that, “[m]ore important than any single check cut to any African American, the payment of reparations would represent America's maturation out of the childhood myth of its innocence into a wisdom worthy of its founders.” (Id. at 207).

b) The 2015 Essay

The 2015 Essay is a 18,000-word essay that appeared in The Atlantic in October 2015. (ECF No. 90-4 at 223-281).¹⁴ Coates traces the roots of the current mass incarceration system back to Daniel Patrick Moynihan's 1965 report “The Negro Family: A Case for National Action.” (Id. at 223, 271). Written 50 years earlier, the report “argued that the federal government was underestimating the damage done to black families by ‘three centuries of sometimes unimaginable mistreatment' as well as a ‘racist virus in the American blood stream,' which would continue to plague blacks in the future[.]” (Id. at 226). Coates writes that “Moynihan believed that at the core of all these problems lay a black family structure mutated by white oppression[,]” a “matriarchal structure [that] robbed black men of their birthright[.]” (Id.) Although the report “advocated no specific policies to address the crisis it described[,]” Coates writes that Moynihan “believed that these effects could be addressed through state action.” (Id. at 231). “They were[,]” Coates argues, “through the mass incarceration of millions of black people.” (Id.)

14 See Ta-Nehisi Coates, Black Family in the Age of Mass. Incarceration, THE ATLANTIC, (October 15, 2015), available at https://www.theatlantic.com/magazine/archive/2015/10/the-black-family-in-the-age-of-mass-incarceration/403246/.

Examining Moynihan's thesis through interviews and historical analysis of “the past fifty years of criminal-justice policy,” Coates writes that Black people, especially Black men, experience unequal and disproportionately punitive treatment in “our carceral state,” or what Coates calls the “Gray Wastes” of jails and prisons. (ECF No. 90-4 at 231-81). For example, Coates quotes Harvard sociologist Devah Pager, who wrote, “Prison is no longer a rare or extreme event among our nation's most marginalized groups[.] . . . Rather it has now become a normal and anticipated marker in the transition to adulthood.” (Id. at 234). In response to this systemic mistreatment, Coates suggests a “serious reformation of our carceral policy-on seeking a smaller prison population, and a prison population that looks more like America[.]” (Id. at 28081). Coates concludes that “the experience of mass incarceration, the warehousing and deprivation of whole swaths of our country, the transformation of that deprivation into wealth transmitted through government jobs and private investment, the pursuit of the War on Drugs on nakedly racist grounds, have only intensified the ancient American dilemma's white-hot core-the problem of ‘past unequal treatment,' the difficulty of ‘damages,' the question of reparations.” (Id. at 291).

iii. Between

Between is a 152-page nonfiction work that discusses American history and the father-son relationship, in the form of a three-part letter from Coates to his fifteen-year-old son Samori. (ECF No. 90-2). Coates describes: (i) his youth in Baltimore (id. at 1-71); (ii) his experiences with police and as a parent (id. at 73-132); and (iii) a visit with Mable Jones, the mother of Coates' college friend who was killed by police. (Id. at 133-52).

The first section begins with Coates' description of a conversation with an interviewer who asks him what it means to “lose [his] body[,]” and, more specifically, “why [Coates] felt that white America's progress, or rather the progress of those Americans who believe that they are white, was built on looting and violence.” (ECF No. 90-2 at 5-6). Discussing the history of racism in America, Coates writes that the interviewer “was asking [him] to awaken her from” a “Dream”-characterized by “perfect houses with nice lawns . . . [,] Memorial Day cookouts, block associations, and driveways[,] . . . [and] treehouses and the Cub Scouts”-and tells his son “that the question of how one should live within a black body, within a country lost in the Dream, is the question of my life, and the pursuit of this question, I have found, ultimately answers itself.” (Id. at 10-12).

Coates describes his time growing up in a Black community in Baltimore. He observed how institutions including school systems, law enforcement, and “the streets” endanger Black bodies, and how he discovered that the “reclamation [of his body] would be accomplished . . . through books, through [his] own study and exploration.” (ECF No. 90-2 at 17-38). Coates found his “Mecca” at Howard University, a historically Black college in Washington, DC. (Id. at 39). At Howard, “[t]he black world was expanding before” Coates, and he began to write, fall in love, and question life outside the Dream. (Id. at 39-64). He meets his partner, and they become pregnant with Samori. (Id. at 64-65).

In the second part of the book, Coates describes the racism of the police in Prince George's County, who shot and killed Prince Jones, Coates' friend from Howard. (ECF No. 90-2 at 75-77). Jones' death led Coates to move with his family from Baltimore to New York City and to view all of America's “Dreamers” as part an oppressive system that perpetrates fear and violence. (Id. at 77-132).

In the third and final part of the book, Coates visited Prince Jones' mother, Dr. Mable Jones. (ECF No. 90-2 at 133-52). After the visit, Coates thought “of all that Prince's mother had invested in him, and all that was lost” because of his killing. (Id. at 146). As the book ends, Coates reflects on Black power, his hopes for his son, and the need for “Dreamers . . . to learn to struggle themselves, to understand that the field for their Dream, the stage where they have painted themselves white, is the deathbed of us all.” (Id. at 146-152).

iv. Water Dancer

Water Dancer is a 403-page novel that describes, using elements of fantasy, surrealism, and the supernatural, an escape from bondage in the Antebellum South. (ECF No. 90-5).

The main character, Hiram Walker, is an enslaved man on the Lockless tobacco plantation in Virginia. He is the son of the plantation's white owner and a Black enslaved woman who was sold south when Hiram was nine years old. Hiram is raised by Thena, an older slave who is the “meanest woman” on Lockless and lives in “a large cabin set back from the others.” Though Hiram has a photographic memory that allows him to “remember[] everything,” he cannot remember his mother, until one day-the day on which the novel opens-he has a vision of his mother dancing as he takes a carriage across a bridge. The carriage falls into the water, where Hiram's white half-brother drowns while Hiram survives.

Hiram learns that his survival is due to his superhuman power of “conduction,” which can make the ground fold “like fabric” and transport people across impossible distances when he is touching water. He can only use conduction by accessing the powerful emotion that comes through the memory of his mother.

Using the Underground Railroad, Hiram escapes Virginia for Philadelphia, where he meets “Moses,” another member of the abolitionist network. Moses mentors Hiram in the use of conduction to free people from slavery. Hiram returns to Lockless to rescue his loved ones. Hiram then becomes the manager of the estate after his father dies.

v. The Black Panther Movie

The Black Panther Movie is a superhero film. (ECF No. 90-9). The “Black Panther” is an appointed title for the leader of the fictional African nation of Wakanda, the most technologically advanced country on the planet due to its reserves of the “vibranium,” an exceptionally strong, light, and powerful element. A long line of Black Panthers have protected Wakanda and ensured its wealth stays hidden from the rest of the world.

In the movie, Wakanda's Prince T'Challa ascends to the throne after the death of his father, the king. T'Challa soon learns that he has an American cousin, Killmonger, who challenges him for the role. Killmonger's father was killed by T'Challa's father after an argument about sharing Wakanda's advanced weapons with Black people around the world. Now Killmonger wants to continue his father's legacy by taking over the kingdom, sending weapons to Black communities internationally, and staging a global revolution. After a fight between different political factions in Wakanda, Killmonger is killed. T'Challa assumes the crown once more and decides to depart from Wakanda's tradition of total isolation by sharing the nation's wealth and resources with the rest of the world.

vi. The Black Panther Comic

Coates wrote 50 installments of the Black Panther Comic. (ECF No. 90-6). Coates explores Wakanda's rise into a wealthy nation and questions its future. His run of the comic is divided into three main story lines: A Nation Under Our Feet, Avengers of the New World, and The Intergalactic Empire of Wakanda. In the issues Coates authored, T'Challa faces a violent uprising encouraged by a terrorist group known as The People, sees the return of Wakanda's ancient gods, travels to deep space to understand the origins of Wakanda's rich stores of vibranium, and guides his nation away from monarchy toward democracy.

vii. The Captain America Comic

Coates wrote 30 installments of the Captain America Comic from 2018 to 2021. (ECF No. 90-7). His run explores the rise of extremist rhetoric in the United States. In Coates' issues, Captain America is no longer regarded as a hero, after the fascist organization Hydra takes over America. Framed for murder, Captain America breaks out of prison to fight back against the villainous leadership known as the Power Elite. In the end, he defeats the cruel nationalist Red Skull by publicizing Red Skull's hypocrisy.

c. Application

The Court analyzes Mr. Baker's Copyright Claims by first “extract[ing] the unprotectible elements” of Shock Exchange and then determining whether any “protectible elements, standing alone, are substantially similar” to any of the Works. Effie Film, 909 F.Supp.2d at 291

i. Unprotectable elements

Mr. Baker premises his Copyright Claims on elements of Shock Exchange that are unprotectable as a matter of law, including his allegedly unique writing style, historical facts, and scenes a faire.

a) Writing style

The crux of the Complaint is Mr. Baker's allegation that, in the Works, Coates copied his “unique literary writing style.” (ECF No. 2 at 17, 20, 30, 32, 33-36, 39, 41-43, 47, 62, 64 ¶¶ 79, 137, 147, 154, 155, 160, 161, 183, 193, 195, 223, 310, 319). Mr. Baker claims that Coates “attempted to mimic [his] dense, rhythmic prose” and “tedious talk.” (Id. at 7 ¶ 4; see id. at 8, 20, 30, 39, 47-52, 56, 57, 59, 61, 62, 64 ¶¶ 9, 13, 95, 138, 183, 223, 229, 233, 238, 243, 248, 255, 279, 291, 303, 307, 319).

To support his Copyright Claims, Mr. Baker includes in the Complaint over 90 pages of side-by-side comparisons purportedly showing stylistic similarities between Shock Exchange and The Works. (ECF No. 2 at 72-103). The following are example for each of the Works:

Between

Shock Exchange

Your maternal grandmother once visited us during the pregnancy. She must have been horrified. We were living in Delaware. We had almost no furniture. I had left Howard without a degree and was living on the impoverished wages of a freelance writer. On the last day of her visit, I drove your grandmother to the airport. Your mother was her only child, as you are my only child. And having watched you grow, I know that nothing could possibly be more precious to her. She said to me, “You take care of my daughter.” When she got out of the car, my world had shifted. I felt that I had crossed some threshold, out of the foyer of my lift and into the living room. Everything that was the past seemed to be another life. There was before you, and then there was after, and in this after, you were the God I'd never had. I submitted before your needs, and I knew then that I must survive for something more than survival's sake. I must survive for you.

I spent several nights up until 1 a.m. - 2 a.m. with a book, a thesaurus and flashlight (so as not to wake up Dwayne and Mark). I went lindy hopping with Malcolm Little, tried to remake myself with Jay Gatsby, and screamed “run black boy, run!” at Bigger Thomas . . . . I frankly did not think Wright's Bigger character was realistic because no black person could have possibly been that dumb. Every black person I knew would have left her drunk behind on the floor and gone back to work. The man was hired as a driver only. Helping his employer's drunken daughter to her room was not part of his job description. Then Ms. Justice wanted to know if l were in Bigger's position, would I have confessed to accidentally murdering the girl instead of fleeing. Frankly, I was insulted. My response was, “That could not happen to me because I am not a fool. If there was a commotion in the West Wing, then I would have been in the East Wing with Sue Ellen and J.R. If there was a commotion in the East Wing, then I would have been in the West Wing with Pam and Bobby. I would have made it my business not to be where the trouble was brewing.” Interestingly enough,

the class was split along racial lines. The white students thought Bigger should have turned himself in because Mary's death was an accident. The African-American students thought the situation was hopeless and Bigger was as good as dead. I opted for “run black boy, run!”

(Id. at 117-18).

Water Dancer

Shock Exchange

It was an unusual request to make to a tasking man, but was not so unusual between us, at moments when it was only us, and each day it seemed there were moments like this. He'd sold off half the kitchen staff in the past year. The smithy and the carpentry workhouse were empty now. Carl, Emmanuel, Theseus, all the other men who once tasked there had been sent off Natchez-way. The icehouse had been fallow for two years. One maid, Ida, worked the entire house, which meant the order that I remembered from childhood was no more, but more than that, meant the warm smile of Beth and the laugh of Leah and the sad, vacant eyes of Eva were no more.

And from then on Grandma had a rule, “If that boy don't play, nobody plays!” To this day my cousins describe me as the ‘demon' that could do no wrong. Grandma had about 20 grandkids, 17 great-grandkids and kept two or three foster kids from time to time. Add in some additional kids from the neighborhood and there was an army of us. The activities went around the clock. And whatever games were going on, all you heard was, ‘Let that boy play. ‘If there was a basketball game going on and my older cousins blew me off, I ran into the house to tell Grandma. She would come outside and take the ball away until they let me shoot a few times, or let me stand on the court and give the illusion as if l was actually playing. We also played softball or ‘tennisball.' And of course I had to play. At two or three years old I could barely hold a bat but they had to stand there and pitch to me until I finally connected. Then I cried if I got out. Grandma would come outside and tell my cousins to put me back on base. They would put me on base to give the illusion as if I was ”safe“ when I was really ‘out.' When we played football I had to be ‘Number 43' for Larry Brown, the All-Pro running back for the Washington Redskins. Larry Brown was my hero and if l could not be #43 then I was not playing. And if l wasn't playing, nobody was

going to play. I would hold up games for 15-20 minutes at a time with my nonsense.

(Id. at 75).

Black Panther Comic

Shock Exchange

Nakia: And when have we not been desperate, M'Baku? Who knows if we'll truly find soldiers down there worthy of the maroons. But what we do know is this: We are not the only ones who are desperate.

Whenever he came home from work Sharmane usually met him in the driveway before he could get out of the car ... Grandpa was seemingly in three states - going to work, at work, or corning from work. We never saw him except for on weekends. He worked the night shift for decades and I never once heard the man complain. He did whatever he had to do in order to provide for his family. As much as he was a killjoy, he definitely had our respect. He worked hard and was a man of means.

(Id. at 144).

The Black Panther Movie

Shock Exchange

Killmonger: I was just checking out these artifacts. They tell me you're the expert. Museum Employee: You could say that. Killmonger: They're beautiful. Where is this one from. Museum Employee: The Bobo Ashanti tribe, present day Ghana,19th century. Killmonger: For real? What about this one? Museum Employee: That one's from the Edo people of Benin, 16th century. Killmonger: Now, tell me about this one. Museum Employee: Also from Benin, seventh century. Fula tribe, I believe. Killmonger: Nah. Museum Employee: I beg your pardon? Killmonger: It was taken by British soldiers in Benin but it's from Wakanda.

And from then on Grandma had a rule, “If that boy don't play, nobody plays!” To this day my cousins describe me as the “demon” that could do no wrong. Grandma had about 20 grandkids, 17 great-grandkids and kept two or three foster kids from time to time. Add in some additional kids from the neighborhood and there was an army of us. The activities went around the clock. And whatever games were going on, all you heard was, “Let that boy play.”

(Id. at 149).

As an initial matter, Mr. Baker fails to articulate with any specificity how Shock Exchange and the Works are stylistically similar. He refers repeatedly to his “dense, rhythmic prose” and “tedious talk,” and alleges, inter alia, that, in Water Dancer, Coates “used commas, ellipses, turns of phrase, syntax and vernacular in a methodical attempt to re-craft” Mr. Baker's writing (ECF No. 2 at 20 ¶ 95; see id. at 21 ¶ 96 (alleging that Coates' “prose and the dialogue [in Water Dancer] are incoherent[,]” and that Coates “rarely makes a complete thought.”); id. at 33-34 ¶¶ 151, 157 (alleging that “the dialogue in [the Comics] is difficult to follow and has little forward movement[,]” and that Coates “simply attempted to arrange words like [Mr. Baker] arranged them in Shock Exchange.”); id. at 36 ¶ 162 (alleging that “[t]he dialogue [in the Black Panther Movie] is rhythmic and tedious, involving characters constantly repeating words in place” and “speak[ing] in the same voice”)). These allegations are far too general, however, to support a plausible copyright claim. See Montgomery I, 408 F.Supp.3d at 377 (“‘Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out'” but “‘there is a point in this series of abstractions where they are no longer protected.'”) (quoting Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976)); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). The numerous examples of purported stylistic similarities Mr. Baker attaches to the Complaint add no clarity to these allegations. Mr. Baker fails to allege-and the Court fails to see-how any of these examples are similar. To the contrary, a review of these comparisons-which, presumably, Mr. Baker believes to be the strongest examples of similarity-makes plain that each excerpt differs greatly in both style and substance. (See ECF No. 2 at 75-161).

In any event, “[w]hile similar writing styles may contribute to similarity between works' total concept and feel, a particular writing style or method of expression standing alone is not protected by the Copyright Act.” Whitehead v. CBS/Viacom, Inc., 315 F.Supp.2d 1, 11 (D.D.C. 2004) (citing Feist, 499 U.S. at 350, 362); see Douglas v. Osteen, 317 Fed.Appx. 97, 99 (3d Cir. 2009) (per curiam) (“[T]he use of a particular writing style or literary method is not protected by the Copyright Act.”); Nesbitt v. Shultz, No. 1CV-00-0267, 2001 WL 34131675, at *7 (M.D. Pa. May 10, 2001) (“[U]sing a ‘flowery, over-drawn style, attempting to simulate a late-Victorian style of writing,' . . . cannot be protected.”); c.f. Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir. 1992) (“[W]here “the fundamental essence or structure of one work is duplicated in another, courts have found copyright infringement.”); Monbo v. Nathan, 623 F.Supp.3d 56, 94 (E.D.N.Y. 2022) (“[M]ethods of story-telling are not protectable.”); McMahon v. Prentice-Hall, Inc., 486 F.Supp. 1296, 1302 (E.D. Mo. 1980) (in a copyright action concerning a psychology textbook, noting that “[a] writer may not claim a monopoly on a particular writing style by virtue of a copyright”) (citing Ricker v. Gen. Elec., 162 F.2d 141 (2d Cir. 1947)). Therefore, even if Shock Exchange and the Works were stylistically similar-which they are not-Mr. Baker's allegations fail to state a plausible Copyright Claim.

b) Historical facts

Similarly, Mr. Baker alleges that certain historical facts that Coates referenced in the Essays “mirrored content from Shock Exchange.” (ECF No. 2 at 27 ¶ 126; see id. at 29-30 ¶¶ 135-36). He claims that, in the 2015 Essay, Coates “wrote about mass incarceration and the impact on the Black family and implied it was inspired by Daniel Patrick Moynihan's The Negro Family: The Case For National Action, published in the 1960s.” (Id. at 27 ¶ 125). “Buried within the article, [Coates] described mass incarceration and the economic impact on the Black family that mirrored content from Shock Exchange.” (Id. ¶ 126). To support this allegation, Mr. Baker identifies, inter alia, the following alleged similarities:

The 2015 Essay	Shock Exchange
U.S. accounts for less than 5 percent of the World's inhabitants - and about 25 percent of incarcerated inhabitants.	U.S. has higher incarceration rate of any country in the free world.

From the mid-70s to the mid-80s, America's incarceration rate doubled, from about 150 people per 100,00 to about 300 per 100,000. From the mid-1980s to the mid- 1990s, it doubled again. By 2007, it had reached a historic high of 767 people per 100,000, before registering a modest decline to 707 people per 100,000 in 2012.	U.S. incarceration rate increased 200 per U.S. incarceration rate increased 200 per 100,000 residents in 2010.
America's closest-to-scale competitor is Russia - and with an autocratic Vladimir Putin locking up about 450 per 100,000, compared to our 700 or so, it isn't much of a competition.	Shock Exchange included a chart of the U.S. to-scale competitors, Rwanda (595), Russia (568), Georgia (547) and U.S. Virgin Isles (549).

(Id. at 110).

Mr. Baker also alleges that, in The 2014 Essay, Coates “described how Clyde Ross-and other Blacks-faced redlining in the state of Illinois.” (ECF No. 2 at 27-28 ¶ 130). “The article described how Blacks in Chicago complained vociferously about not being able to secure a mortgage, and fought back against redlining.” (Id. at 28 ¶ 131). Mr. Baker alleges that Coates “copied his interpretive analysis on redlining[.]” (Id. at 25 ¶ 117). He also claims that Coates “used an example for reparations that mirrored” Mr. Baker used in Shock Exchange. (Id. at 29). Specifically, in The 2014 Essay, Coates wrote:

Edward Coles, a protege of Thomas Jefferson who became a slaveholder through inheritance, took many of his slaves north and granted them a plot of land in Illinois. John Randolph, a cousin of Jefferson's, willed that all his slaves be emancipated upon his death, and that all those older than forty be given ten acres of land. “I give and bequeath to all my slaves their freedom,” Randolph wrote, “heartily regretting that I have been the owner of one.”

(Id. at 29 ¶ 135). Mr. Baker compares Coates' reference to John Randolph to the following excerpt from Shock Exchange:

Legend has it that when former Congressman John Randolph of Roanoke went away to college, a black man accompanied him as an aide. Randolph eventually grew so close to the man that he treated him almost like a family member,

contributing to Randolph's decision to free his slaves as soon as he could afford to ... They were given Israel Hill, which was considered fertile and could be used to promote farming. The free blacks also blacksmiths, carpenters, and the like.

(Id.)

Mr. Baker's claim that Coates copied his interpretative analysis fails to support a plausible Copyright Claim. As with his allegations concerning his writing style, Mr. Baker fails to describe his “analysis” in any detail. In reality, Mr. Baker accuses Coates merely of referencing historical facts that Mr. Baker also mentioned in Shock Exchange. (ECF No. 2 at 27 ¶ 126; see id. at 25, 29 ¶¶ 115-17, 135 (comparing references to redlining and “an example for reparations” and claiming Coates copied Mr. Baker's “interpretative analysis”); see also id. at 110 (comparing references to global incarceration statistics)). As noted above, however, “facts are not copyrightable[.]” Feist, 499 U.S. at 344; see Effie Film, 909 F.Supp.2d at 303 (“As a matter of copyright law, historical facts and interpretations are not protectible.”) (citing Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980)). Accordingly, Mr. Baker's Copyright Claims based on Coates' use of similar historical facts fail as a matter of law.

c) Scenes a faire and short phrases

Finally, Mr. Baker improperly bases his Copyright Claims on various unprotectable scenes a faire. For example, he claims that Coates' “description of Lockless [in Water Dancer] was similar to how [Mr. Baker] described Up The House[,]” and that Coates “referred to going ‘up to the house,' ‘the great house,' ‘the house,' and ‘this house' hundreds of times in order to linguistically sound like ‘Up The House.'” (ECF No. 2 at 19 ¶ 86). Setting a slave novel on a large plantation, however, is an element that “necessarily result[s] from the choice of a setting or situation.” Montgomery I, 408 F.Supp.3d at 363; see id. at 378 (finding that, “in a story about Americans in Paris[,]” the following constituted scenes a faire: parties with cosmopolitan guests; walks through old Paris neighborhoods; walking arm-in-arm; concerts and nightclubs; asking for directions; and asking “parlez-vous anglais?”); see Effie Film, 909 F.Supp.2d at 306 (finding that, in a screenplay involving the Victorian art world, “shots of Victorian-era gardens, the winding and checking of a Victorian-style gold pocket watch, a manor staffed by servants, panoramas of the Scottish countryside, and views of the Venetian cultural scene during the occupation of that city by Austrian officials” all constitutes scenes a faire). Similarly, with respect to Mr. Baker's claims regarding Coates' use in Water Dancer of phrases similar to “Up the House[,]” such “[s]hort phrases . . . are also not protectable.” Montgomery I, 408 F.Supp.3d at 378 (citing Lewinson, 659 F.Supp.2d at 568).

* * *

Accordingly, none of the elements on which Mr. Baker rests his Copyright Claims are protectible as a matter of law and he has not stated a plausible claim for relief. See Abdin, 971 F.3d at 67; Dreamtitle, 2023 WL 4350734, at *20; Montgomery I, 408 F.Supp.3d at 37-78.

ii. Lack of overall substantial similarity

Having examined Shock Exchange and the Works in detail, and as is apparent from the excerpted comparisons above and annexed to the Complaint, the Court finds that they “differ dramatically . . . in ‘total concept and overall feel,' see Gaito, 602 F.3d at 66, as well as in elements more easily isolated, like plot, themes, and pacing.” Montgomery I, 408 F.Supp.3d at 375 (citing Williams, 84 F.3d at 589). Shock Exchange is a largely autobiographical book recounting Mr. Baker's life and his analysis of the 2008 financial crisis, told through Mr. Baker's experiences as a retail banker and his creation of a youth basketball team. The Works, by contrast, include: (i) a surreal tale of an escape from slavery (Water Dancer); (ii) essays arguing for a reimagination of the public discourse on the concept of reparations to Black Americans and for a “serious reformation of [America's] carceral policy” (the Essays); (iii) a non-fiction book in the form of a letter to Coates' son that explores the father-son relationship through the lens of racial violence; (iv) superhero stories involving fictional kingdoms, global revolution, and the struggle against fascist takeover (the Comics and Black Panther Movie). None of the Works involves basketball, a career in banking, economic theory, or any other details of Mr. Baker's life. “In other words, [Shock Exchange and] the [W]orks ‘are not similar in mood or details . . . and, indeed, differ in nearly every relevant way.” Montgomery I, 408 F.Supp.3d at 376 (S.D.N.Y. 2019) (quoting Mallery v. NBC Universal, Inc., No. 07 Civ. 2250 (DLC), 2007 WL 4258196, at *8 (S.D.N.Y. Dec. 3, 2007)). “There is simply no ‘plausible claim that there is a common aesthetic appeal between'” Shock Exchange and any of the Works. Id. at 375 (quoting Mallery, 2007 WL 4258196, at *8).

The-at most-“handful of superficial and immaterial similarities” between Shock Exchange and the Works are not sufficient to state a plausible copyright claim. Montgomery I, 408 F.Supp.3d at 375. For example, Mr. Baker identifies various characters in some of the Works that are allegedly similar to characters in Shock Exchange. He alleges that, in Between, Coates' “life sounded like [Mr. Baker]'s life.” (ECF No. 2 at 30-31 ¶ 140). He claims that Coates “described his parents and grandparents similarly to how [Mr. Baker] described his parents and grandparents[,]” and that Coates' “passions sounded like [Mr. Baker's] passions.” (Id.) Mr. Baker describes Shock Exchange as “a celebration of [his] family, the teachers and professors who raised him[,]” and alleges that, by comparison, Coates “structured Between [] in a similar fashion” and “attempted to celebrate his family and professors who allegedly influenced him” and “to celebrate Howard University the way [Mr. Baker] celebrated his alma maters.” (Id. at 31 ¶¶ 14243). He also notes that he and Coates both wrote their respective books to their sons. (Id. at 31 ¶ 141). Similarly, Mr. Baker alleges that, in Water Dancer, Coates “copied stories about [his] family, Prince Edward County, VA and his life.” (Id. at 16 ¶ 72). Specifically, Mr. Baker claims that Water Dancer's main character, Hiram, “was based on a description of his life[,]” and that “other characters were based on his parents and grandparents as described in Shock Exchange.” (Id. ¶ 73). Mr. Baker also alleges broad similarities between his grandmother's house in Prince Edward County, Virginia, as described in Shock Exchange, and the fictional Lockless Plantation in Elm County, Virginia, where Water Dancer is set. (Id. at 16 ¶ 74 (alleging that Lockless “was based on [Mr. Baker's] descriptions of Prince Edward County, Farmville, and Up The House[,] the farm owned by [Mr. Baker]'s grandmother.”)). According to Mr. Baker, Coates' “description of Lockless was similar to how [Mr. Baker] described Up The House[,]” and Coates “referred to going ‘up to the house,' ‘the great house,' ‘the house,' and ‘this house' hundreds of times in order to linguistically sound like ‘Up The House.'” (Id. at 19 ¶ 86).

These supposed similarities, however, are “far too general to support a claim of copyright infringement.” Brown v. Time Warner, Inc., 287 F.Supp.3d 380, 386 (S.D.N.Y. 2017). With respect to the characters in Between, Mr. Baker alleges that both he and Coates went to college, were influenced by family and teachers, and have sons. (ECF No. 2 at 31 ¶¶ 141-43). Given that the characters are otherwise completely different-including when and where they were raised, their careers, and the life experiences they describe-these characteristics are “generalized and unprotectible.” Montgomery I, 408 F.Supp.3d at 377; see Allen v. Scholastic Inc., 739 F.Supp.2d 642, 660 (S.D.N.Y. 2011) (“The bar for substantial similarity in a character is set quite high[.]”); see also Tanikumi v. Walt Disney Co., 616 Fed.Appx. 515, 521 (3d Cir. 2015) (per curiam) (affirming dismissal of copyright claim because, “while both works feature a mountain setting, an intense sisterly bond, an untrue lover, and a resolution in which the female protagonist comes into her own without the help of a man, copyright law does not protect such common topics in autobiographical literature and film.”). The lack of similarity between Mr. Baker and Water Dancer's main character, Hiram, an enslaved man with supernatural powers living in the Antebellum South, is even more stark. At most, both characters were raised in part on large properties in Virginia by tough matriarchs. These characteristics, however, “appear alike only at a distance and only in general; upon closer examination, [the characters] are so different [that] no ordinary or discerning observer would register them as similar.” Montgomery I, 408 F.Supp.3d at 377. Mr. Baker does not identify-and the Court does not discern-any other similarities between these characters. “This principle applies to many of the other ‘random similarities'” Mr. Baker cites in the 91 pages of purported resemblances attached to the Complaint. Id. (quoting Allen, 739 F.Supp.2d at 663). Indeed, a “[r]eview of [Mr. Baker]'s list shows that nearly every instance of similarity” he alleges “either concerns an unprotectable element, or to ‘an ordinary observer' would not appear to be a similarity at all.” Id. (quoting Gaito, 602 F.3d at 66).

* * *

“In sum, there are no ‘protectible elements, standing alone' that meet even a de minimis level of similarity.” Montgomery I, 408 F.Supp.3d at 378 (quoting Williams, 84 F.3d at 588); see Amanze, 2019 WL 2866071, at *6 (“[A]t anything but the most abstract levels of generality, the two works are nothing alike, let alone substantially similar.”). Accordingly, the Court finds that, “because the differences between the works are ‘so pronounced,' ‘no reasonable jury could find that the works are substantially similar[,]"' Montgomery, 408 F.Supp.3d at 378 (quoting Hogan, 48 F.Supp.2d at 311), and respectfully recommends that Mr. Baker's Copyright Claims be DISMISSED for failure to state a claim.

2. Unfair Competition Claims

Mr. Baker alleges that Defendants “engaged in unfair competition with [him] and Shock Exchange by publishing [the Works] that included content copied from Shock Exchange” and in which Coates “attempted to copy [Mr. Baker]'s unique literary writing style.” (ECF No. 2 at 4142 ¶ 195; see id. at 38-67 ¶¶ 177-339).

The DWT Defendants argue that Mr. Baker's Unfair Competition Claims are preempted by the Copyright Act. (ECF No. 93 at 40-41). In his Opposition, Mr. Baker responds that Defendants “engaged in the wholesale copying of Shock Exchange, the marketing of such wholesale copying or both[,]” and that “[t]he motive for the copying was to generate profits, which was inherently unfair.” (ECF No. 120 at 24). He claims that, “[b]y stealing the most important aspects of Shock Exchange, the [D]efendants have destroyed the market for the book.” (Id.)

As noted above, Mr. Baker does not specify whether he asserts his Unfair Competition Claims under the Lanham Act, New York common law, or both. Construing Mr. Baker's as liberally as possible, the Court addresses both.

a. Legal standards

The Lanham Act provides in relevant part:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1). “Actions arising under subsection (A), commonly known as reverse passing off claims, proscribe misrepresentations about who manufactured the product in question.” Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215, 234 (S.D.N.Y. 2010) (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 28-30 (2003)).¹⁵“It does not, however, cover misrepresentations about the author of an idea, concept, or communication embodied in those goods.” Id. (citing Dastar, 539 U.S. at 37).

15 In Dastar, the Supreme Court held that the Lanham Act does not apply to claims involving a failure to attribute or credit the origin of creative work, and that such claims are cognizable only under the Copyright Act. 539 U.S. at 30-37.

“Analysis of common law claims for unfair competition ‘mirror[s] the Lanham Act.'” Gary Friedrich Enters., 713 F.Supp.2d at 231 (quoting ESPN, 586 F.Supp.2d at 230)). “To establish unfair competition, New York law requires that (1) the plaintiff possesses a ‘valid, protectable mark'; and (2) the defendant's use of the mark resulted in ‘a likelihood of confusion between the marks of the alleged infringer and the charging party.'” Gary Friedrich, 713 F.Supp.2d at 231 (quoting ESPN, Inc. v.Quiksilver, Inc., 586 F.Supp.2d 219, 230 (S.D.N.Y.2008)); see also Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F.Supp.2d 448, 456 (S.D.N.Y. 2005) (“The essence of the tort of unfair competition under New York common law is the bad-faith misappropriation, for the commercial advantage of one person, [of] a benefit or ‘property' right belonging to another [person].”

“When Congress revised the copyright laws in 1976, it specifically provided for preemption of all state rights equivalent to those within the scope of federal copyright law.” Am. Movie Classics Co. v. Turner Entm't Co., 922 F.Supp. 926, 930 (S.D.N.Y. 1996). Section 301 of the Copyright Act provides:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

17 U.S.C. § 301(a).

“A state-law cause of action is preempted by the Copyright Act if ‘the subject matter of the state-law right falls within the subject matter of the copyright laws and the state-law right asserted is equivalent to the exclusive rights protected by [§ 106].'”' Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2016 WL 5720766, at *8 (S.D.N.Y. Sept. 29, 2016) (quoting Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir. 1993)).

b. Application

The Court finds that Mr. Baker has failed to state an unfair competition claim under either the Lanham Act or New York law. With respect to the Lanham Act, Mr. Baker premises these claims on “the misrepresentation of ideas embodied in the” Shock Exchange. Gary Friedrich Enters., 713 F.Supp.2d at 234. (See, e.g., ECF No. 2 at 39 ¶ 183 (alleging that Defendants, “through [Coates'] books and articles copied from Shock Exchange, ha[ve] engaged in unfair competition” by “brandish[ing] [Coates] as a thought leader on redlining, mass incarceration, economics, Reconstruction, [and] Virginia history, amongst others[,]” and thereby “caus[ing] public confusion resulting in the wrongful belief that [Coates], and not Ralph Baker and Shock Exchange, is the source of these themes and analyses”)). The Lanham Act “does not, however, cover misrepresentations about the author of an idea, concept, or communication embodied in those goods.” Id. “Because misrepresentation of authorship lies at the heart of this action, [Mr. Baker's] Lanham Act claim[s are] barred by Dastar.” Id. (dismissing author's Lanham Act claims based on unlawful use of his copyrighted characters and story); see Patterson v. Diggs, No. 18 Civ. 3142 (NSR), 2019 WL 3996493, at *6 (S.D.N.Y. Aug. 23, 2019) (“[T]he right to copy creative works, with or without attribution, is the domain of copyright, not of . . . unfair competition, and the failure to credit the true author of a copyrighted work is not a false designation of origin, but a violation of copyright.”).

Mr. Baker also fails to state an unfair competition claim under New York common law. “Here, the essence of [Mr. Baker's] unfair competition claim is that [D]efendants have violated [his] exclusive rights to reproduce or prepare derivative works of” Shock Exchange. Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2016 WL 5720766, at *8 (S.D.N.Y. Sept. 29, 2016). (See, e.g., ECF No. 2 at 68 ¶ 346 (alleging that Defendants “engaged in unfair competition . . . by publishing [Works] that included content copied from Shock Exchange and . . . attempted to copy [Mr. Baker's] unique literary writing style.”)). “As pled, this claim ‘not only is based on a copyright claim, but also lacks any extra element making it sufficiently different from a copyright claim to escape preemption.'” Kelley, 2016 WL 5720766, at *8 (quoting Weber v. Geffen Recs., Inc., 63 F.Supp.2d 458, 462 (S.D.N.Y. 1999)). “This claim must, therefore, be dismissed.” Id.; see Orange Cnty. Choppers, Inc. v. Olaes Enters., Inc., 497 F.Supp.2d 541, 556 (S.D.N.Y. 2007) (“It is axiomatic that unfair competition . . . claims grounded solely in the copying of a plaintiff's protected expression are preempted by the Copyright Act.”). In addition, “the Court's determination that there is no substantial similarity between the [Works and Shock Exchange] precludes a finding under New York law that Defendants assembled a product which bears so striking a resemblance to [Shock Exchange] that the public will be confused as to the identity of the products, which is necessary for a finding of unfair competition in New York.” Adams v. Warner Bros. Pictures Network, No. 05 Civ. 5211 (SLT) (LB), 2007 WL 1959022, at *6 (E.D.N.Y. June 29, 2007), aff'd sub nom. Adams v. Warner Bros. Pictures, 289 Fed.Appx. 456 (2d Cir. 2008) (summary order).

Accordingly, the Court respectfully recommends that the DWT Defendants' Motion be GRANTED as to Mr. Baker's Unfair Competition Claims and that those claims be DISMISSED.

3. Dismissal with prejudice

Courts “ordinarily recommend that a pro se plaintiff be given leave to amend his complaint to replead all factually insufficient claims.” Huggins v. Schriro, No. 14 Civ. 6468 (GBD) (JLC), 2015 WL 7345750, at *9 (S.D.N.Y. Nov. 19, 2015); see Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se complaint generally should not be dismissed without granting the plaintiff leave to amend at least once[.]”); Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). “[L]eave to amend is not necessary[,]” however, “when it would be futile.” Shibeshi v. City of New York, 475 Fed.Appx. 807, 808 (2d Cir. 2012) (summary order) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (finding leave to amend futile where the complaint, even when read liberally, did not “suggest[] that the plaintiff has a claim that she has inadequately or inartfully pleaded and that she should therefore be given a chance to reframe”)).

Here, Mr. Baker attached to the Complaint 91 pages of exhibits comparing what he perceives as similar excerpts from the Works, and the DWT Defendants' Motion included copies of the Works in their entirety. (ECF Nos. 2 at 72-161; 90-1 - 90-10). After conducting a thorough review of these materials, the Court's “detailed comparison of the [W]orks demonstrates that there is no amendment to the pleadings that would make the [W]orks themselves substantially similar” to Shock Exchange. Montgomery I, 408 F.Supp.3d at 379. “The problem with [Mr. Baker]'s causes of action is substantive; better pleading will not cure it.” Cuoco, 222 F.3d at 112; cf. Thomas v. Carter, 581 F.Supp.3d 651, 656 (S.D.N.Y. 2022) (“Because Plaintiff's [copyright] claims are wholly incredible and fanciful, the Court finds that further amendment would be futile.”); Kaye v. Cartoon Network Inc., 297 F.Supp.3d 362, 371 (S.D.N.Y. 2017) (“Plaintiff's request for leave to file an amended complaint is denied because the finding of a lack of substantial similarity turns on the works themselves and not on the artfulness or sufficiency of the pleading.”). Accordingly, granting Mr. Baker leave to amend would be futile, and the Court therefore respectfully recommends that the Complaint be dismissed WITH PREJUDICE and without leave to amend.

V.CONCLUSION

For the reasons set forth above, the Court respectfully recommends that Defendants' Motions be GRANTED, and that the action be DISMISSED WITH PREJUDICE.

* * *

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Oetken.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Baker does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, they may request copies from Defendants' counsel. See Local Civ. R. 7.2.