NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JON ASTOR-WHITE, an individual, 

Plaintiff-Appellant, 

 v. 

DANIEL WILLIAM STRONG, AKA 

Strong; et al., 

Defendants-Appellees.

No. 19-55735 

D.C. No. 

2:15-cv-06326-PA-RAO 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Submitted August 21, 2020**

San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit 

Judges.

Jon Astor-White appeals from the district court’s Rule 12(b)(6) dismissal of 

his amended complaint for copyright infringement. Astor-White claims that the 

defendants’ (Fox) television series Empire infringed his copyrighted treatment of a

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

AUG 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

television series, King Solomon. The parties are familiar with the facts, so we do 

not repeat them here. We affirm.

A panel of our court previously held that Astor-White’s First Amended 

Complaint did not state a claim for copyright infringement, but remanded the case 

to afford Astor-White opportunity to amend the complaint. See Astor-White v. 

Strong, 733 F. App’x 407, 407–08 (9th Cir. 2018). He was given two additional 

opportunities to amend the complaint, but the Third Amended Complaint still fails 

to plausibly allege that Fox actually “copied” and “unlawful[ly] appropriate[d]” 

King Solomon. Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en 

banc). 

Astor-White does not adequately allege actual copying. King Solomon was 

not “widely disseminated”; it was shared with only three people. Three Boys 

Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000), overruled on other 

grounds by Skidmore, 952 F.3d 1051. And Astor-White’s mere allegation that 

those three people and he had a “working relationship” with or “move[ed] in 

similar circles” as Fox does not establish that Fox had a “reasonable opportunity or 

reasonable possibility of viewing” King Solomon. Id. (internal quotation marks 

omitted). Nor does Astor-White plead similarities that are probative of copying—

rather than “coincidence, independent creation, or prior common source”—such 

that we could reasonably infer that Fox copied King Solomon. Skidmore, 952 F.3d 
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at 1064 (quotation omitted).

Astor-White also fails to plausibly allege that Fox unlawfully appropriated 

King Solomon because the works do not share similarities in protectable 

expression. See id. The additional alleged similarities are forms of literary 

expression that are unprotectable as a matter of law. See, e.g., Berkic v. Crichton, 

761 F.2d 1289, 1293 (9th Cir. 1985) (“all situations and incidents which flow 

naturally from a basic plot premise”); Cavalier v. Random House, Inc., 297 F.3d 

815, 823 (9th Cir. 2002) (“[f]amiliar stock scenes and themes”). Nor does AstorWhite allege similarity in the “particular way in which the artistic elements form a 

coherent pattern, synthesis, or design.” Skidmore, 952 F.3d at 1074. The district 

court correctly concluded as part of the extrinsic test that the two works only share 

unprotectable “ideas and concepts, material in the public domain, and scènes à

faire.” Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118 (9th Cir. 2018), overruled 

on other grounds by Skidmore, 952 F.3d 1051. Astor-White does not state a viable 

claim for copyright infringement.

The district court did not abuse its discretion in refusing leave to amend. See 

Rich v. Shrader, 823 F.3d 1205, 1209 (9th Cir. 2016) (after “two opportunities to 

amend,” the district court has “wide discretion in granting or refusing leave to 

amend” (internal quotation marks and citations omitted)).

AFFIRMED.