Substantial Similarity Requires Protectable Expression: Eleventh Circuit Affirms Dismissal Where Shared Afterlife Imagery Is Scènes à Faire

Introduction

In George Lee Clark v. Dr. Eben Alexander, III, et al., No. 24-10099 (11th Cir. Oct. 15, 2025) (per curiam) (non-argument calendar, not for publication), the Eleventh Circuit affirmed the dismissal with prejudice of a pro se plaintiff’s copyright infringement complaint alleging that Dr. Eben Alexander’s bestselling 2012 memoir, Proof of Heaven, infringed the plaintiff’s 2007 copyrighted work, Heaven’s Pen (registered with the U.S. Copyright Office). The suit also named the book’s publisher (Simon & Schuster, Inc.), a retailer (Amazon.com, Inc.), and a production company (Prometheus Entertainment).

The appeal centers on core copyright doctrines: the two-part “copying” inquiry (factual copying and legal copying), the substantial similarity standard, and the idea/expression dichotomy, including the scènes à faire doctrine. It also touches on appellate abandonment principles and the standards for dismissing a pro se case with prejudice when further amendment would be futile.

The court held that, even assuming access to the plaintiff’s work, the two works are not substantially similar in protectable expression. The alleged similarities—imagery and themes commonly associated with depictions of heaven and the afterlife—are noncopyrightable scènes à faire. Consequently, the complaint failed to state a claim under 17 U.S.C. §§ 106 and 504.

Summary of the Opinion

The panel reviewed de novo the dismissal under Rule 12(b)(6), accepting the complaint’s factual allegations as true and construing them in the plaintiff’s favor.
Ownership was undisputed; the dispositive issue was “copying,” which comprises:
- Factual copying (access plus probative similarity), and
- Legal copying (copying of original, protectable expression).
Assuming access, the court agreed that the works are not substantially similar under the “average lay observer” test when considering plot, characters, setting, and pace.
Even if there were similarities, they concern “general themes,” “broad ideas,” and scènes à faire related to depictions of heaven—nonprotectable under copyright law.
Lists of alleged similarities are “inherently subjective and unreliable,” especially when they collect random parallels.
Additional issues—False Claims Act, due process, and references to a TV episode produced by Prometheus—were abandoned on appeal due to inadequate briefing.
Dismissal with prejudice was affirmed: plaintiff had already amended once, and further amendment would be futile because the works are not substantially similar as a matter of law.
All pending motions were denied.

Detailed Analysis

I. Factual Background and Procedural Posture

Clark alleged that Proof of Heaven is a “misappropriated derivative work” and that it “incorporates paraphrasing and direct copyright infringement” of his 2007 work, Heaven’s Pen. He did not provide certified copies with the complaint; the defendants attached Proof of Heaven and a 28-page outline/summary of Heaven’s Pen to their motion to dismiss, later supplying a copy authenticated by the U.S. Copyright Office after Clark questioned authenticity.

The district court compared the works and dismissed the complaint with prejudice, reasoning that they are not substantially similar in protectable expression and that the cited overlaps concern common, stock features of afterlife depictions. The Eleventh Circuit affirmed.

II. Standard of Review

The court applied de novo review to the Rule 12(b)(6) dismissal, accepting factual allegations as true and drawing reasonable inferences for the plaintiff. See Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).

III. Elements of Copyright Infringement and Their Application

To state a claim, a plaintiff must plausibly allege: (1) ownership of a valid copyright and (2) copying of original, constituent elements of the work. See Compulife Software, Inc. v. Newman, 111 F.4th 1147, 1156 (11th Cir. 2024) (Compulife II).

Ownership: Undisputed; Clark registered his work in 2007 (registration noted as “Heaven’s penn,” but treated as Heaven’s Pen in line with the complaint).
Copying: Requires both factual copying and legal copying. See Compulife Software, Inc. v. Newman, 959 F.3d 1228 (11th Cir. 2020) (Compulife I); Compulife II, 111 F.4th at 1156.

A. Factual Copying: Access and Probative Similarity

Access was not contested. The dispute focused on whether a reasonable fact finder could discern probative similarity. The court used the “average lay observer” yardstick and compared core narrative elements—plot, characters, setting, and pace. See Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir. 2002); Beal v. Paramount Pictures Corp., 20 F.3d 454, 460 (11th Cir. 1994).

Plot: Heaven’s Pen is a fictional narrative about a “child of heaven” sent to Earth as punishment to learn unconditional love; Proof of Heaven is an autobiographical account of a neurosurgeon’s life and near-death experience, including his perceived afterlife. The plots diverge entirely in premise and narrative arc.
Characters: The memoir’s characters (real persons in Dr. Alexander’s life) are dissimilar to the fictional figures in Heaven’s Pen.
Setting: While both reference “heaven,” Proof of Heaven also takes place in identifiable terrestrial locations (Virginia and North Carolina) and an underworld, whereas Heaven’s Pen “focuses on describing heaven.”
Pace: Heaven’s Pen is a “progressing linear narrative”; Proof of Heaven is non-linear, “jump[ing] quickly” between life stages before, during, and after a coma.

On those core features, the works are not substantially similar as an average lay observer would perceive them.

B. Legal Copying: Protectable Expression vs. Unprotectable Ideas

Even if probative similarity existed, legal copying requires appropriation of original, protectable expression. Noncopyrightable material includes:

General themes,
Broad ideas, and
Scènes à faire—stock elements that naturally flow from a common theme. See Beal, 20 F.3d at 459–60.

The panel agreed with the district court that the asserted overlaps—e.g., heaven as origin, music and drumbeats, primordial creatures and landscapes, flight, unconditional love, rainbows, and welcoming vegetation—are classic afterlife tropes and thus scènes à faire, not protectable expression. The complaint, in other words, identified only unprotectable ideas and stock imagery, not particularized expressive choices appropriated by the later work.

The court also rejected reliance on catalogues of “similarities,” reiterating that such lists are “inherently subjective and unreliable,” especially when they mix “random similarities.” See Beal, 20 F.3d at 460. The district court’s “in-depth analysis” showed that many alleged parallels were either nonprotectable or “cannot fairly be considered similarities” at all.

IV. Abandoned Issues and Peripheral Defendants

Abandonment on appeal: Although Clark’s brief gestured to the False Claims Act, due process concerns, and a TV episode of The UnXplained produced by Prometheus, he did not develop arguments or cite supporting authority. Under Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014), such perfunctory references are abandoned.
Prometheus Entertainment: The complaint did not allege that Prometheus created or distributed Proof of Heaven. Defendants noted Prometheus’s production of a single episode featuring Dr. Alexander’s brief afterlife description, but neither that episode nor any alleged similarities to Heaven’s Pen were pleaded. On this record, no viable claim was stated against Prometheus.

V. Dismissal With Prejudice and Pro Se Amendment

A pro se plaintiff ordinarily should receive at least one opportunity to amend, unless amendment would be futile. See Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132–33 (11th Cir. 2019). Clark had already amended once. Given the court’s conclusion that the works are not substantially similar and that the alleged overlaps concern unprotectable material, further amendment would be futile. The dismissal with prejudice was therefore proper.

VI. Precedents Cited and Their Influence

Compulife I and II (Compulife Software, Inc. v. Newman, 959 F.3d 1228 (11th Cir. 2020); 111 F.4th 1147 (11th Cir. 2024)):
- Clarify the bifurcated “copying” inquiry: factual copying (access plus probative similarity) and legal copying (appropriation of protectable expression).
- Guide the court’s sequential approach here: even if access is assumed, no substantial similarity exists; and regardless, no protectable expression was copied.
Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir. 1994):
- Provides the analytical frame for comparing plot, characterization, pace, and setting.
- Articulates the scènes à faire doctrine in this circuit and cautions against “lists of similarities.”
Calhoun v. Lillenas Publ’g, 298 F.3d 1228 (11th Cir. 2002):
- States the “average lay observer” test for substantial similarity.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014):
- Grounds the abandonment holding for issues mentioned perfunctorily without argument or authority.
Silberman v. Miami Dade Transit, 927 F.3d 1123 (11th Cir. 2019):
- Supports affirmance of dismissal with prejudice when a pro se plaintiff has already amended and further amendment would be futile.
Almanza v. United Airlines, Inc., 851 F.3d 1060 (11th Cir. 2017):
- States the de novo standard and pleading-stage lens.

Complex Concepts Simplified

Substantial similarity: A practical test asking whether an “average lay observer” would recognize the challenged work as appropriated from the original. It considers holistic narrative features, not just atomized overlaps.
Factual vs. legal copying:
- Factual copying asks whether the defendant actually used the plaintiff’s work (access plus probative similarity).
- Legal copying filters out ideas, facts, and stock elements and asks whether protectable expressive choices were taken.
Scènes à faire: Stock scenes or elements that naturally flow from a topic (e.g., angelic music, ethereal light, rainbows in depictions of heaven). No one author can monopolize such standard tropes; they are free for all creators.
Idea/expression dichotomy: Copyright protects the author’s particularized expression of an idea, not the idea itself (e.g., “a journey to heaven” is an idea; the unique arrangement of scenes, dialogue, characters, and settings that depict that journey is the protectable expression).
“List of similarities” pleading: Courts are skeptical of laundry lists of generalized parallels, especially when divorced from context, sequence, and narrative function. The legal analysis emphasizes the overall expressive choices and protected selection and arrangement, not isolated common ideas.
Dismissal with prejudice and futility: Courts will allow amendment when it could cure defects. But if the core legal deficiency is incurable—here, that asserted overlaps are unprotectable and the works diverge fundamentally—dismissal with prejudice is proper.
Abandonment on appeal: An appellant must develop arguments with supporting authority. Passing mentions without analysis are treated as abandoned and will not be considered.

Impact and Practical Implications

Pleading and early disposition in copyright cases: The decision reinforces that when the works at issue are before the court, a complaint can be dismissed at the pleading stage if substantial similarity in protectable expression is lacking. Plaintiffs should attach or ensure authenticated copies of the works and allege concrete, protectable overlaps.
Afterlife/heaven narratives: Authors cannot claim exclusive rights over stock imagery associated with heaven or near-death experiences. Common motifs—music, light, flight, welcoming landscapes, unconditional love—are free for all to use. Claims premised on such tropes are vulnerable to dismissal.
Fiction vs. memoir: Where one work is a fictional narrative and the other is an autobiographical memoir with distinct plot, characters, setting, and pacing, the likelihood of substantial similarity diminishes. Plaintiffs must pinpoint protectable expressive choices, not general subject matter.
“List of similarities” strategy: Simply listing perceived parallels is insufficient. Effective pleadings should show how the defendant appropriated the plaintiff’s protected selection, coordination, and arrangement of expressive elements.
Third-party defendants: Naming publishers, retailers, or media producers demands specific allegations tying each to the alleged infringement. Absent such facts, and particularly where the complaint omits the challenged work or episode, claims will fail.
Pro se litigation: The panel underscores that pro se litigants get leeway to amend, but not endlessly. Once amendment would be futile, courts may dismiss with prejudice.
Precedential effect: Although unpublished and nonprecedential, the opinion aligns with and applies settled Eleventh Circuit doctrine (Compulife, Beal, Calhoun, Sapuppo, Silberman). It provides a clear roadmap for district courts confronting similar claims involving common thematic content.

Conclusion

The Eleventh Circuit’s per curiam affirmance in Clark v. Alexander reaffirms a bedrock principle of copyright law: substantial similarity must be found in protectable expression, not in unprotectable ideas, themes, or stock elements that naturally arise from a shared subject. Comparing plot, characters, setting, and pace, the panel found decisive differences between a fictional outline about a “child of heaven” and an autobiographical memoir recounting a near-death experience. The plaintiff’s reliance on common afterlife imagery fell squarely within the scènes à faire doctrine, and generalized lists of overlaps could not salvage the claim.

The decision also reinforces procedural guardrails: issues not adequately briefed are abandoned; pro se litigants receive an opportunity to amend but not where amendment would be futile; and courts may dispose of insufficient copyright claims at the pleading stage when the works themselves show the absence of substantial similarity in protectable expression. For authors, publishers, and media producers, the opinion provides practical assurance that they may draw on universal, stock imagery associated with heaven and the afterlife without incurring liability—so long as they do not appropriate another’s protected, particularized expression.