Anna Biani participated in an online role-playing forum themed around Victorian London, where she created three original characters: Charlotte Émilie Benoit, Frederick FitzClarence, and Landon Otis Lloyd. She registered copyrights for these characters and her forum posts. Biani alleged that the television series Penny Dreadful, which aired on Showtime, infringed her copyrights by incorporating aspects of her characters into the show’s characters, particularly Vanessa Malcolm and Sir Malcolm Murray. She pointed to similarities in character traits, backgrounds, and the casting of Eva Green, whom she had identified as resembling one of her characters.

The United States District Court for the Central District of California reviewed Biani’s complaint. The court dismissed the case for failure to state a claim, finding that Biani had not plausibly alleged that the defendants had access to her work or that the similarities between the characters were so striking as to preclude independent creation. The district court applied the extrinsic test for substantial similarity, filtering out unprotectable elements such as stock features of the Victorian-era genre, and concluded that any remaining similarities were insufficient. Biani was given leave to amend but chose not to do so, resulting in dismissal with prejudice.

On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal. The Ninth Circuit held that, to state a claim for copyright infringement, a plaintiff must plausibly allege ownership of a valid copyright and that the defendant copied protected aspects of the work. The court found that Biani failed to plausibly allege copying, as the similarities were not so extensive as to preclude coincidence or independent creation. Additionally, the court agreed that Biani did not allege substantial similarity in protectable expression under the extrinsic test. The judgment of the district court was affirmed. View “BIANI V. SHOWTIME NETWORKS, INC.” on Justia Law