"Murder & Roses: Victorian London Crime and Scandals” is an online forum (possibly found here) where fans can spin tales of crime and scandal set in the Victorian era. Members can populate their stories with classic characters (like Dorian Gray or Frankenstein) or invent their own. When creating an original character, members are required to post a description and pick an actor who looks like their creation. Is this final requirement to assist future casting directors? Or simply to ensure the forum knows that the author intends the corset-wearing, scandal-mongering protagonist to look like Timothée Chalamet after a three-day absinthe bender? Both possibilities are plausible.

Between 2011 and 2013, Forum member (and plaintiff) Anna Biani created three characters – Charlotte, Frederick, and Landon – which were featured in over 1,000 posts. Most relevant to us is Charlotte, described by Biani as a petite witch doctor and assassin with magical healing abilities. Biani identified Eva Green as the actor who most resembled her Charlotte - a natural choice, perhaps, given Green's star turn as a witch in Tim Burton's 2012 film Dark Shadows.

In 2014, Penny Dreadful, a psychological horror drama set in Victorian London, debuted on Showtime. The series wove together classic Gothic characters like Dr. Frankenstein, Dorian Gray, and Dracula with an original storyline and was hailed by Variety as “solidly entertaining, well cast and oozing with atmosphere.” But according to Biani, that ooze wasn’t just ambiance … it was evidence. She claimed the show’s characters Vanessa Malcolm and Sir Malcolm Murray bore “substantially and/or strikingly similar” traits to all three of her own creations. Biani found it particularly incriminating that Eva Green – the very actress that she had identified as embodying the essence of her character Charlotte – was cast to play Vanessa. That couldn’t possibly be a coincidence … could it?

The alleged similarities between and among the characters are summarized in this chart:

The district court dismissed Biani’s complaint for failure to plausibly allege that the defendants had a reasonable opportunity to copy her work. Last week, a panel of the Ninth Circuit affirmed.

To prove copyright infringement, a plaintiff must demonstrate (1) ownership of a valid copyright in the work and (2) unauthorized copying of original elements of the work. To prove unauthorized copying, the plaintiff must show both that (a) the defendant actually copied the work (i.e., factual copying), and (b) the defendant’s copying was “illicit” or constituted unlawful appropriation. (Footnote: the panel noted that some of the Ninth Circuit’s cases “have caused confusion by failing to distinguish between factual copying and unlawful appropriation.” True that.) 

It is rare that a plaintiff will have direct evidence of actual (or factual) copying. Instead, typically, actual copying is proven by circumstantial evidence that (i) the defendant had access to the plaintiff’s work, and (ii) the two works share similarities probative of copying rather than coincidence, independent creation, or prior common source. (Nimmer calls this "probative similarity.") 

Biani did not appeal the district court’s finding that she had failed to allege a plausible case that the defendants had access to her works. Therefore, her limited path forward was to allege that the Penny Dreadful characters were so “strikingly similar” as to preclude the possibility of independent creation. (See this post.) To be “striking,” similarities must appear in a unique or complex context such that “it is virtually impossible that the two works could have been independently created" (citations omitted). As the court noted, “this is a high bar.” 

On appeal, Biani argued that the district court had erred by improperly filtering out - and not considering - the similar but unprotectable or “stock” elements of the characters when analyzing whether or not the defendants had actually copied her characters. The Ninth Circuit panel agreed that this was a mistake: because similarities of both protectable and unprotectable elements in two works can be probative of actual copying, both may be considered. (Such filtering is appropriate only when evaluating whether there has been unlawful appropriation in the next step of the analysis. See this post.)

However, the court found the error to be harmless because even when considering the unprotectable elements of the two works, Biani’s allegations were insufficient to support that actual copying had occurred. The court noted that while some similarities might exist at an abstract level, “even a cursory examination of the works’ characters exposes many more differences than similarities.” Even the most similar characters – Vanessa and Charlotte – had differences that equaled or outweighed the similarities. For example, Charlotte wears women’s clothing, feels no remorse for homicides, and is clingy toward young people to “taint” them; by contrast, Vanessa, never commits murder, expresses grief, and is portrayed with emotional depth and remorse. And while Showtime’s selection of Eva Green to play Vanessa may seem like a striking similarity since Biani identified her as the actor who most resembled Charlotte, it was more than plausible that Biani and Showtime could have independently chosen her due to her prior role as a witch in Dark Shadows. 

The panel also agreed with the district court that even if Briani had alleged facts sufficient to support that actual copying had occurred, those allegations did not support that the copying was actionable. The alleged similar characteristics between her characters and those in Penny Dreadful “are at a level of generality that is unprotectable”; once those unprotectable elements were filtered out (which is permitted as part of the extrinsic analysis - see the graphic above), the similarity disappears. The court explained:

"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. 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. In sum, applying the extrinsic test and filtering out unprotectable elements, we agree with the district court that Biani fails to allege substantial similarity in protectable expression.”

The district court had held that Biani had plausibly alleged in the complaint that her characters were sufficiently delineated over multiple iterations to be subject to an independent copyright under DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015). (See this post, this post and this post). The appeals court did not address this issue.

Biani v. Showtime Networks, Inc., No. 24-3949, __ F.3d __ (9^th Cir. Sept. 8, 2025)