IP Law Daily, COPYRIGHT—9th Cir.: Did Showtime make a witch’s brew out of a novelist’s copyrighted characters?, (Sep 10, 2025)

By Matthew Hersh, J.D.

Surface similarities do not add up to ‘striking similarity,” the court finds.

A writer who claimed that a streaming channel “blended attributes of her various characters in a cauldron” in a popular horror-fantasy TV series did not show that the overlaps between the two works were so strikingly similar as to rule out the possibility of independent creation, the U.S. Court of Appeals for the Ninth Circuit has held. The court, in affirming the dismissal of the complaint by a Los Angeles federal court, emphasized that the writer had not adequately pleaded access to her work and a comparison of the characters in the two works exposed “many more differences than similarities” (Biani v. Showtime Networks, Inc., No. 24-3949 (9th Cir. Sept. 8, 2025)).

The lawsuit traces its roots to the year 2011, when a writer named Anna Biani joined an online creative writing community called Murders & Roses: Victorian London Crime and Scandals.” As part of her contribution to the platform, Biani created three original characters. One, named Charlotte, is described by Biani a slim, thirty-one-year-old “witch doctor” and “assassin” with “magical healing abilities.” Biani described Eva Green as the actor who would best depict the appearance and physical characteristics of her imagined character. A second of her characters, Frederick, is portrayed as an “imposter” who always “seeks reassurance and approval,” is “inappropriately sexually provocative,” and has “histrionic personality disorder.” A third, Landon, is a clairvoyant “explorer” who dreams about future events and “lives a nomadic lifestyle, constantly traveling from one country to another.”

Biani’s attention was raised when, in 2014, Showtime began to air a horror-drama series (now available for streaming from Paramount) entitled Penny Dreadful. The show tells the story of Vanessa Ives—played by none other than Eva Green—as a Victorian-era woman living in London. The show also features a character named Sir Malcolm, a professional explorer who returns to London to find his missing daughter Mina. The show’s first season depicts their search for Mina while they confront canonical Victorian-era characters and supernatural beings like Count Dracula, Frankenstein, and Dorian Gray.

Biani, miffed, filed a copyright infringement lawsuit against Showtime. The complaint, which also targeted series creator John Logan and executive producers David Nevins, alleged that the show infringed Biani’s copyright in her characters by incorporating various aspects of them into the characters of Vanessa and Malcolm. The complaint largely focused on the Showtime character Vanessa, who Biani contended was made up of essentially a blend of her own three characters. From her character Charlotte, Biani contended, Showtime’s Vanessa borrowed elements of Charlotte’s physical characteristics (such as her age and beauty), personality (such as her sexual desire, her homicidal tendencies, and her feminism), and her special abilities (in particular, witchcraft based on the arts of herbalism). From her character Frederick, Biani contended, Showtime’s Vanessa borrowed his history of seizures, his connection with the spiritual world, and his lifelong struggle with the demons of his past. Finally, from her character Landon, Biani contended, Showtime’s Landon borrowed his clairvoyance.

The district court granted Showtime’s motion to dismiss dismissed the complaint. Its short order began by acknowledging that Biani’s characters, as pleaded, were sufficiently delineated and distinctive to “plausibly” merit copyright protection. However, the court found that Biani had not adequately alleged that Showtime had access to her characters, nor were they so “strikingly similar” as to preclude the possibility of independent creation.

Biani appealed, leading to this opinion.

Factual copying. The court of appeals affirmed. Before doing so, the court clarified the standard for copyright infringement. In a copyright case, the court noted, a plaintiff must show both “factual copying” as well as “unlawful appropriation.” Because the focus at the first stage is whether the defendant actually copied the plaintiff’s work, the court noted, “any similarity between works may be considered so long as it is probative.” At the “unlawful appropriation” stage, by contrast, a plaintiff must show that the defense also copied enough of the plaintiff’s protected expression to render the two works substantially similar. In applying this second test on a motion to dismiss, the court noted, a court must focus filtered out “unprotectable elements” such as ideas and concepts or stock scènes à faire. “While some of our prior cases have caused confusion by failing to distinguish between factual copying and unlawful appropriation,” the court noted, “they are distinct concepts.”

Here, the court noted, the district court erred by filtering out unprotected elements at the factual copying stage. But that did not matter. On appeal, the court of appeals noted, Biani did not challenge the district court’s finding that Showtime did not have access to her work. Thus, her claim rested on a showing of striking similarity. “This is a high bar,” the court noted. To be striking, the court emphasized, “similarities must appear in a unique or complex context such that it is virtually impossible that the two works could have been independently created.” Did Biani meet this standard? Even setting aside the district court’s error, the court found, she did not.

Biani did not meet the striking similarity test, the court found. Biani essentially argued that Showtime “blended attributes of her various characters in a cauldron to conjure Vanessa and Malcolm,” the court noted. But “even a cursory examination of the works’ characters,” the court found, exposed “many more differences than similarities.” For example, the court noted, Biani describes Charlotte as “wearing a man’s attire,” “never feeling remorse after her homicides,” and having a “strange habit of being over-protective and clingy toward newly matured boys and girls.” Vanessa, by contrast, never murders anyone and expresses grief when Malcolm is forced to kill his daughter to save her life. As to the selection of Eva Green to play Charlotte, the court noted, while that appears striking” on the surface, both Biani and Showtime “could have both independently identified Eva Green as an actress who could play a witch, as she played one in a well-publicized film that preceded both works.”

The similarities between Biani’s Charlotte and Showtime’s Frederick—and between her Landon and Showtime’s Malcolm—fared no better. “Unlike Frederick,” the court noted, “Charlotte is not portrayed as an ‘imposter’ and ‘attention whore,’ who “constantly pretends to have the same interests and opinions as the person she is talking to.’” And while her Landon and Showtime’s Malcom both travel, the court noted, Landon has clairvoyant powers and travels the world “in search for other people with clairsensing abilities.” Malcolm, by contrast, “has no clairvoyant powers, does not travel to find others with clairvoyant abilities, only travels through Africa, and is wealthy and does not need to ‘make ends meet.’” These differences were fatal to Biani’s claim that her work and the show were so “strikingly similar as to preclude the possibility of independent creation,” the court concluded.

Unlawful appropriation. Even if Biani could have shown factual copying, the court found, it would still fail independently under the unlawful appropriation prong because Biani’s alleged similar characteristics were “at a level of generality that is unprotectable.” For example, Biani focuses on Charlotte and Vanessa’s shared characteristics of being similarly-aged, “strong,” “beautiful,” and “pale brunettes,” who “dress in Victorian attire,” and engage in witchcraft and “deviant behavior.” But “basic plot ideas such as a woman rejecting the norms of her era (and therefore having fraught relationships with the church and nonmarital relationships), are unprotectable,” the court noted. In sum, the court found, on an objective review of the pleadings and filtering out unprotectable elements, “we agree with the district court that Biani fails to allege “substantial similarity in protectable expression.”

The Case is No. 24-3949.

Judge: Nguyen, J.

Attorneys: Raj Gandesha (White & Case LLP) for Anna Biani. David Halberstadter (Katten Muchin Rosenman LLP) for Showtime Networks, Inc., Showtime Digital, Inc., John Logan, and David Nevins.

Companies: Showtime Networks, Inc.; Showtime Digital, Inc.

MainStory: TopStory Copyright GCNNews AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews