23-7483-cv Baker v. Coates

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of December, two thousand twenty-four.

Present: GERARD E. LYNCH, WILLIAM J. NARDINI, EUNICE C. LEE, Circuit Judges. _____________________________________

RALPH W. BAKER, JR.,

Plaintiff-Appellant,

v. 23-7483

TA-NEHISI P. COATES, BCP LITERARY, INC., THE ATLANTIC, LAURENE POWELL JOBS, DAVID G. BRADLEY, BERTELSMANN SE & CO. KGAA, SPIEGEL & GRAU, CHRIS JACKSON, NICOLE COUNTS, VICTORY MATSUI, KENYATTA MATTHEWS, THE APOLLO, MACEO-LYN, KAMILAH FORBES, SUSAN KELECHI WATSON, WARNER BROS. DISCOVERY, INC., Ms. OPRAH WINFREY, THE WALT DISNEY COMPANY, APPLE, INC., PLAN B, MGM STUDIOS, RYAN COOGLER, JOE ROBERT COLE, ROXANE GAY, YONA HARVEY, THE ATLANTIC MONTHLY GROUP LLC, VICTORIA MATSUI, ENTERTAINMENT, INC., METRO-GOLDWYN-MAYER STUDIOS INC., SPIEGEL & GRAU LLC,

Defendants-Appellees, _____________________________________

For Plaintiff-Appellant: RALPH W. BAKER, Jr., pro se, Brooklyn, New York.

For Coates Defendants-Appellees: JOHN M. BROWNING (Linda J. Steinman, Laura R. Handman, Celyra I. Myers, on the brief), Davis Wright Tremaine LLP, New York, NY.

For Defendant-Appellees Oprah Winfrey TAL DICKSTEIN (Barry Slotnick, David and Apple, Inc.: Forrest, on the brief), Loeb & Loeb LLP, New York, NY.

For Defendant-Appellees The Apollo and Howard Schiffman, Robert Griffin, on the Kamilah Forbes: brief, Schulte Roth & Zabel LLP, New York NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (J. Paul Oetken, District Judge; Sarah L. Cave, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Appellant Ralph W. Baker, Jr., proceeding pro se, appeals from a judgment of the United

States District Court for the Southern District of New York (J. Paul Oetken, District Judge) entered

on September 27, 2023, granting Appellees’ motion to dismiss the Complaint. Baker sued author

Ta-Nehisi Coates, as well as a variety of associated companies and individuals, alleging that

Coates and the other defendants infringed on the copyright of Baker’s self-published memoir,

Shock Exchange: How Inner-City Kids From Brooklyn Predicted the Great Recession and the Pain

Ahead (“Shock Exchange”). Baker alleged that upon reading Coates’s novel The Water Dancer,

he realized that Coates had attempted to mimic his writing style and had copied portions of Shock

2 Exchange, which Baker had sent Coates in 2013. Approximately eighty pages of Baker’s

complaint are dedicated to side-by-side comparisons between Shock Exchange and Coates’s

various literary works including: The Water Dancer, Between the World and Me, We Were Eight

Years in Power, several magazine articles and comic books, as well as dialogue from the movie

Black Panther. For instance, Baker used the following two passages to demonstrate how, in his

view, Coates must have appropriated what Baker describes as Shock Exchange’s “rhythmic prose

and tedious talk” writing style:

The Water Dancer Shock Exchange

The effect of all this was a kind of We would see all kinds of people from the watchfulness among the tasking folks, in community, some from Mercy Seat, particular toward those you did not know. Hampden-Sydney, Darlington Heights, etc., This worked the other way too, so that if you looking like they were in dire straits. If he were new to Lockless or any of these other didn’t know the person, then Grandpa houses of bondage, you took things slow, you miraculously was out of liquor. We kids saw did not question or inquire on people’s affairs, this take place for years and never once for if you did you might then be thought to be mentioned it, not even amongst ourselves; we among those who were eye [sic] and ears, knew better. who tasked among the Task, and this was a dangerous place because then you thought yourself might be poisoned or plotted against.

Complaint, Ex. B, at 9, 17, Baker v. Coates, No. 22-cv-7986,

(S.D.N.Y. Sept.

27, 2023), ECF No. 2.

After conducting a lengthy review of Baker’s allegations, the magistrate judge

recommended dismissing the Complaint for failure to state a claim, reasoning in part that the works

were not substantially similar as a matter of law. The district court adopted the report and

recommendation and dismissed the Complaint. See Baker v. Coates, 22-CV-7986 (JPO) (SLC),

(S.D.N.Y. July 26, 2023), report and recommendation adopted,

3 6289964 (S.D.N.Y. Sept. 27, 2023). 1 On appeal, Baker challenges the dismissal of his Complaint,

and moves to hold Appellees’ counsel in contempt and to strike Appellee Apple, Inc.’s brief. We

assume the parties’ familiarity with the case.

We review de novo the grant of a motion to dismiss for failure to state a claim. See

Hernandez v. United States,

(2d Cir. 2019). To establish 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.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

(1991). 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.” Hamil Am. Inc. v. GFI,

, 99 (2d Cir. 1999).

An evaluation of substantial similarity is “guided by comparing the contested [work’s] total

concept and overall feel with that of the allegedly infringed work.” Peter F. Gaito Architecture,

LLC v. Simone Dev. Corp.,

(2d Cir. 2010). The court may consider similarities in

“feel, theme, characters, plot, sequence, pace, and setting,” but must look beyond “superficial

similarities.” Williams v. Crichton,

, 588‒89 (2d Cir. 1996). Dismissal is appropriate

if the works in question are not substantially similar as a matter of law—that is, if no reasonable

jury could find the works substantially similar. See Peter F. Gaito Architecture, 602 F.3d at 63–

64. “[T]he works themselves supersede and control contrary descriptions of them, including any

contrary allegations, conclusions or descriptions of the works contained in the pleadings.” Id. at

64.

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted. 4 The district court properly dismissed Baker’s complaint. We agree with the district court

that Baker has failed to demonstrate substantial similarity as a matter of law between Shock

Exchange and the alleged infringing works. The passages that Baker includes in his Complaint to

demonstrate alleged similarities in content and style show neither; the works are so dramatically

different in content, total concept, and overall feel that no “lay observer” would regard Coates’s

works as having been appropriated from Shock Exchange. Id. at 66. Where the excerpts of Shock

Exchange employ a straightforward, unadorned literary style, the excerpts of Coates’s works

demonstrate a more intricate and detailed manner of writing. Beyond relating to Black history and

culture, the overall concepts of Shock Exchange and Coates’s works bear little overlap. To the

extent there are any similarities between Baker’s work and Coates’s, they concern ideas, which

are not copyrightable, rather than the expression of those ideas or the form in which they are

presented, which are copyrightable. For example, while Coates’s works and Shock Exchange both

touch on Reconstruction, imprisonment, and redlining, the Complaint’s side-by-side excerpts

reveal no similarities beyond general factual narratives; to the extent there are any similarities of

wording or expression, such similarities are minor or superficial.

Baker argues that the district court erred in concluding there was no substantial similarity

between the works without considering comprehensive nonliteral similarity. This argument is

unavailing. The comprehensive nonliteral similarity test refers to an examination of “whether the

fundamental essence or structure of one work is duplicated in another,” in contrast to “the

fragmented literal similarity test, which focuses upon copying of direct quotations or close

paraphrasing.” Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc.,

(2d Cir. 1998).

In evaluating substantial similarity in terms of total concept and overall feel, the district court

5 assessed whether the fundamental essence or structure of Shock Exchange was duplicated in

Coates’s works. We agree with the district court that it was not.

Baker also argues that the district court erred in adopting the R&R’s recommendation to

dismiss his copyright claims against a subset of defendants for insufficient service of process and

his unfair competition claims. However, the absence of substantial similarity is dispositive of

Baker’s copyright claims against all defendants, as well as his unfair competition claims. See

Warner Bros. Inc. v. Am. Broad. Cos.,

, 246 (2d Cir. 1983) (observing that an unfair

competition action may fail where comparison of the works “establishes as a matter of law a lack

of substantial similarity that would create a likelihood of confusion as to source”). Accordingly,

even assuming arguendo that those issues were properly before us, any error by the district court

would be of no moment. 2

Finally, Baker’s motion to strike Apple’s brief and hold the law firms in contempt is denied

because it is meritless. Not only does Baker allege no bad faith on appeal, but his filings reveal

that he was not actually deprived of access to the material on certain unplayable discs.

Accordingly, Baker’s ability to respond to the motions to dismiss was not meaningfully hindered.

* * *

2 A pro se litigant’s failure to timely object to a magistrate judge’s recommendation will preclude appellate review of unobjected-to portions, provided the report and recommendation gives adequate warning, as it did here. See Small v. Sec’y of Health & Hum. Servs.,

(2d Cir. 1989); see also Baker,

, at *23. The district court observed that Baker had failed to object to the relevant portions of the report and recommendation, and reviewed them for clear error only. See Baker,

, at *2–3, 5. Thus, by failing to object to the service-of-process and unfair-competition recommendations, Baker forfeited his right to appeal those aspects of the decision. 6 We have considered all of Baker’s remaining arguments and find them unpersuasive.

Accordingly, we AFFIRM the judgment of the district court and DENY Baker’s motion.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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